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1923 
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Study and Report 



AMERICAN FEDERATION 

OF LABOR 


Upon 

Judicial Control Over 
Legislatures as to Constitutional 

Questions 


BY JACKSON H. RALSTON 


11 



SECOND EDITION 

REVISED AND ENLARGED TO OCTOBER, 1923 


ORDERED PREPARED AND PRINTED IN PAMPHLET FORM BY ST. PAUL 
CONVENTION OF THE A. F. OF L. 



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1923 

The Law Reporter Printing Company 
Washington, D. C. 


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313-A 


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15^-1 

Judicial Control Over Legislatures as to 

Constitutional Questions 


To the Executive Council of the American Federation of Labor: 

At the Thirty-eighth Annual Convention of the American Federation 
of Labor, held at St. Paul, Minnesota, in the month of June, 1918, the 
following resolution was passed: 

“Whereas, The sole right to make or unmake laws is vested in legislative bodies 
or the direct vote of the people by the Constitution of the United States; and 

“Whereas, The preservation of this right is essential if we are to remain a self- 
governing people; and 

“Whereas, Courts of the United States without constitutional authority or legis¬ 
lative sanction have assumed the power to invade the prerogatives of the legislative 
branch of the government by unmaking and rendering invalid laws enacted by the 
people or their legislative representatives, the exercise of this power setting aside on 
many occasions the desires and aspirations of the people as expressed through legisla¬ 
tion, even when such measures had the approval of the majority of the people, their 
legislative representatives, and the President of the United States; an action which 
would be impossible in any other democratically governed nations; therefore, be it 

“ Resolved, That the Executive Council be and is hereby instructed to have a 
study made of the successive steps which have been taken by our Federal and Supreme 
Courts, through which, without constitutional authority, and in opposition to the action 
of the Constitutional Convention, they laid hold on power which they now exercise; 
that the results of such study be prepared in pamphlet form and distributed to the 
affiliated organizations and given such other form of publicity as may be deemed advis¬ 
able ; and that legal counsel be consulted with so that an adequate measure may be 
prepared and introduced to Congress, which will prevent any invasion of the rights and 
prerogatives of the legislative branch of our government, by the judiciary.” 

Pursuant to the above resolution and at your request, in the Spring 
of 1919 I made as careful a study of the subject indicated above as the 
time at my command then permitted, and submitted it, with the con¬ 
clusions at which I had arrived, for your careful consideration. 

Since that time four years have elapsed and this subject, the im¬ 
portance of which was then appreciated by your body, has now so far 
attracted public attention as to offer one of the most immediate problems 
calling for speedy solution. At the request, therefore, of your President, 
I have revised my prior report and have brought it down to date as shown 
hereafter. 

OPINIONS OF RECENT WRITERS AS TO PRESENT EXER¬ 
CISE OF JUDICIAL POWERS 

Before entering into the discussion it seems appropriate to refer, in 
some measure, to the importance of the matter as illustrated by expres¬ 
sions of opinions, not alone as embodied in the resolution above mentioned, 
but as given by other careful and generally disinterested students of politi¬ 
cal affairs. I shall therefore take the liberty now of citing some of the 

313A—1 



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more important utterances indicative of dissatisfaction with the existing 
judicial system, whereby judges set at defiance the popular will, as indi¬ 
cated by legislative action, often straining constitutional language to meet 
the requirements of the political and economic views entertained by the 
bench. 

Says William L. Ransom, in “Majority Rule and the Judiciary, 
(page 4): 

“The judge has no more right than any other official to be set up over the people 
as an irremovable and irresponsible despot. He has no more right than any other 
official to decide for the people what the people ought to think about questions of vital 
public policy, such as the proper handling of corporations and the proper methods of 
securing the welfare of farmers, wage workers, small business men, and small profes¬ 
sional men.” 


Mr. Ransom, on page 168 of his work, quotes “The Nation” (page 
203), by Elisha Mulford, as follows: 

“. . . To make the opinions of the judiciary a finality in the political order 
would fetter the free spirit of the people, confining it, not in the assertion and regula¬ 
tion of law as the determination of the organic will, but in the conformance to a mere 
legality. The past, by its precedents, would impose its authority upon the present. 
The energy of the people perishes when precedents become the substitute for the ac¬ 
tion of a living will, and the strength of a living spirit. . . . The formative political 
power must belong only to the power which is representative of the political will.” 


Professor J. Allen Smith, in “The Spirit of American Government” 
(page 92), expresses himself to this effect: 

“. . . But however much the convention may have desired to give to the 
judiciary the power to veto legislation, it could not have been done by an express pro¬ 
vision of the Constitution. Any such attempt would have disclosed altogether too 
clearly the undemocratic reactionary character of the proposed government and thus 
have prevented its adoption. This end was attained indirectly through the general 
system of checks which the Constitution imposed upon the other branches of the 
government and upon the people, since it made it possible for the judiciary to assume 
and exercise this power.” 


Again, on page 116, he says: 


“With the progress of democracy it must become more and more evident that a 
system which places this far-reaching power in the hands of a body not amenable to 
popular control, is a constant menace to liberty. It may not only be made to serve the 
purpose of defeating reform, but may even accomplish the overthrow of popular rights 
which the Constitution expressly guarantees. In proof of this statement we need but 
refer to the recent history of our Federal judiciary. The Sixth Amendment to the 
Constitution guarantees the right of trial by jury in all criminal prosecutions; but it 
is a matter of common knowledge that this time-honored safeguard against the 
tyranny and oppression of ruling classes has been overthrown by the Federal courts. 
With the ascendency of corporate wealth and influence, government by injunction has 
become an important feature of our system. The use made of the injunction in recent 
years in the conflicts between labor and capital has placed a large and important class 
of crimes beyond the pale of this constitutional provision. Moreover, this particular 
class of crimes is the one where denial of the right of trial by jury is most likely to 
result in oppression. Under this mode of procedure the court has virtually assumed 
the power to enact criminal legislation, and may punish as crimes acts which neither 


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law nor public opinion condemns. It ensures conviction in many cases where the con¬ 
stitutional right of trial by jury would mean acquittal. It places a powerful weapon 
in the hands of organized wealth which it is not slow to use.” 

Brooks Adams, in his “Theory of Social Revolutions” (page 75), 
says: 

• . . I contend that no court can, because of the nature of its being, effec¬ 

tively check a popular majority acting through a coordinate legislative assembly, and I 
submit that the precedents which I have cited prove this contention. The only result 
of an attempt and failure is to bring courts of justice into odium or contempt, and, in. 
any event, to make them objects of attack by a dominant social force in order to use 
them as an instrument, much as Charles II used Jeffreys.” 

On page 97 he expresses himself as follows: 

“. . .In fine, whenever pressure has reached a given intensity, on one pretext 
or another, courts have enforced or dispensed with constitutional limitations with quite 
as much facility as have legislatures, and for the same reasons. The only difference 
has been that the pressure which has operated most directly upon courts has not always 
been the pressure which has swayed'legislatures, though sometimes both influences 
have combined. For example, during the Civil War, the courts sanctioned everything 
the popular majority demanded under the pretext of the War Power, as in peace they 
have sanctioned confiscation for certain popular purposes, under the name of the Police 
Power.” 

Professor W. F. Dodd, writing in the “Political Science Quarterly,” 
Vol. 28, No. 1, remarks: 

“The exercise of policy-determining functions by the courts causes no difficulty 
so long as judicial action is in accord with sober popular sentiment on social and indus¬ 
trial questions. But the power of the courts in recent years to declare laws invalid as 
depriving persons of ‘due process of law’ has been exercised in direct opposition to 
growing popular sentiment and to present social and industrial conditions; and the 
‘due process of law’ clause, meaning what the judges in any’particular case may decide 
that it means, is, as now interpreted, simply a means of vesting judges with power to 
declare unconstitutional any laws of which they disapprove. There are under this 
clause no fixed or definite standards for determining what laws are constitutional and 
what are unconstitutional. Judges are thus exercising political functions, without cor¬ 
responding political responsibility; and inasmuch as such functions are being exercised 
in a manner opposed to public sentiment, popular criticism of the courts is a necessary 
consequence.” 


Says Chief Justice Walter Clark in “Infallible Government by the 
Odd Man” (American Law Review) : 

“The power to set aside or nullify an act of Congress or a state legislature is a 
purely political power and is so recognized by the constitutions which give the veto to 
the Executive. It comes under no definition or conception of the judicial power, which 
is to judge between the parties to a controversy. Neither the government nor the state 
is a party to these proceedings, in which its supremest power—that of enacting laws— 
is nullified. As claimed and exercised by the courts, it is the absolute, autocratic power, 
because it is irreviewable. Those whose interest it is to have such power over the 
legislative and executive assert it for their own ends. The wonder is that it has ever 
been acquiesced in at all under a free form of government.” 


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4 

Professor Freund, of the University of Chicago, in his work, Stand¬ 
ards of American Legislation” (page 285), says: 

“The spirit of adjudication is after all a very different one from the spirit of 
legislation. Adjudication decides between contentions for the full measure of abstract 
rights carried to their logical conclusions, unaffected by the possible expediency of 
indulgence and concession, for courts deal with human relations in an atmosphere of 
controversy and extreme self-assertion; they touch life mainly at the point of abnormal 
disturbance. The function of legislation, on the other hand, is to prevent controversy, 
and is therefore dominated by the spirit of compromise and adjustment; it is for this 
reason that legislative rights are likely to be more qualified than common-law rights. 
The result is that the principle of judicial rule or justice is the minimum, the principle 
of legislative rule or justice the maximum, of reciprocal concession. If so, judge-made 
law is ill-suited for guiding legislation, and we should not look to the courts for the 
development of rules of legislative justice.” 

Chairman Frank P. Walsh and Commissioners Garretson, Lennon 
and O’Connell, of the Commission on Industrial Relations, recommended, 
in their portion of the report of the Commission, because of the existence 
of many evils, “that Congress immediately enact a statute, or, if deemed 
necessary, initiate a constitutional amendment, specifically prohibiting 
the court from declaring legislative acts unconstitutional.” 

Dean William Trickett, in “American Law Review,” Vol. 41, page 
650, writes as follows: 

. . The people will never be masters of their own house so long as a majority 
of nine gentlemen, pretending to have Marconigrams from the defunct men of 1787 and 
1788 concerning their meaning when they adopted this or that phrase of the Constitu¬ 
tion, arrogate to themselves the power to veto, and not merely refuse to aid in the en¬ 
forcement of statutes, but even launch prohibitions against the carrying out of these 
statutes by those who, unhindered by them, would legally execute them.” 

Very pointedly, Prof. Edward S. Corwin (American Political Science 
Review, May, 1912), said: 

“The truth of the matter is that the modern concept of due process of law is not 
a legal concept of all; it comprises nothing more or less than a roving commission to 
judges to sink whatever legislative craft may appear to them to be, from the stand¬ 
point of vested interests, of a piratical tendency.”* 

Judge Wannamaker, of Ohio (Illinois State Bar Association, Year 
Book 1912, pages 181-2), says: 

“No English court for more than two hundred years has held an act of Parlia¬ 
ment unconstitutional. Such jurisdiction had not been exercised by any English court 
for seventy-five years prior to the formation of our Federal Constitution. The fathers 
never intended to confer such an extraordinary jurisdiction, then unknown. ... It 
is an usurpation of judicial power. 

“The exercise of this unwarranted and usurped governmental power against the 
public interest, against the public health, safety and life, has done more than any other 
single thing to arouse the present popular hostile feeling toivards our courts of last 
resort.” 

Mr. Gilbert E. Roe in “Our Judicial Autocracy” takes positions simi¬ 
lar to those already outlined. 

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EARLY HISTORY OF JUDICIAL CONTROL OF LEGISLATION 

It is not necessary, for the purpose of this study, to elaborate at great 
length the early history of the idea which finally culminated in the present 
condition of judicial control of legislation as to its constitutionality—this 
for the reason that rights and duties must be judged, if they be judged 
properly, from the standpoint of present-day experience and of standards 
of political right conduct here and now. The principle involved in this 
statement is much the same as in the natural sciences. In order to under¬ 
stand the basic principles upon which a steam engine is operated we do not 
need to know the details of the studies of Watt and Stephenson. 

In the present instance, however, as we deal with words and their 
application to human affairs, some attention must be given to the process 
by which they arrived at their present meaning if we are to read the 
future from the past. 

A study of data brought to light by modern writers indicates that in 
the early Middle Ages in many instances ecclesiastical courts and 
authorities refused to follow dictates of Parliament as unrighteous or at 
least irreligious. Further it was recorded by Coke, three centuries ago, 
in favor of the King’s Power of Pardon, notwithstanding a parliamentary 
act, that Parliament could not take from a man “that protection which 
the law of nature giveth unto him.” In another case: “That in many 
cases the common law will control acts of Parliament, and sometimes 
adjudge them to be utterly void; for when an act of Parliament is against 
common right and reason, or repugnant or impossible to be performed, 
the common law will control it, and adjudge such act to be void.” Coke, 
118 a. b. 

Notwithstanding this, we are told in Haines’ “American Doctrine of 
Judicial Supremacy” (page 33) that: 

“. . . Authorities seem to accord in the opinion that there is no specific case 
on record in which an English court of justice has openly taken upon itself to overrule 
or disregard the plain meaning of an act of Parliament. This view of Pollock is con¬ 
firmed by Holland, who states that ‘these dicta, though approved by Lord Holt, in 
London v. Wood, appear never to have been followed in practice’; and by Holdsworth, 
who believes that although ‘large theories were based upon these scattered dicta by the 
lawyers and statesmen of the late sixteenth and seventeenth centuries,’ no evidence is 
found ‘in this period that the professional feeling of the common lawyers led the judges 
to attempt to limit the competence of statutes.’ . . . The dicta of Coke in Bon¬ 
ham’s case, . . . are founded upon very little medieval authority and though at 
all periods some statutes have been submitted to a restrictive interpretation there never 
has at any period been any serious attempt on the part of the lawyers to question the 
omnipotence of Parliament.” 

It is true that some writers have argued at great length that the 
opinions of Coke on the general subject exercised a large influence over 
those who were engaged in the formation of the Constitution of the United 
States, and in the making of some of the precedents hereafter to be alluded 
to wherein colonial or early state courts declared legislative acts to be 
unconstitutional, but the evidence is scanty and, at least to my mind, very 
inconclusive. 


6 


At the time of the formation of our own government, notwithstanding 
the declarations of Coke, the best known opinion in this country with 
regard to the power, or rather lack of power, of the judiciary, over acts of 
Parliament, was that of Blackstone, who, in his Commentaries (Vol. 1, 
page 91), stating the Tenth Rule for Construing Statutes, remarked: 

“ ... If Parliament will positively enact a thing to be done which is unreason¬ 
able, I know of no power in the ordinary force of the constitution that is vested with 
authority to control it; and the examples usually alleged in support of this sense of the 
rule do none of them prove that, where the main object of a statute is unreasonable, 
the judges are at liberty to reject it; for that were to set the judicial power above 
that of the legislature, which would be subversive of all government.” 

Much is said by those interested in sustaining the present power of 
the court, .with regard to the power exercised by the Privy Council of 
England on appeal to it to declare acts of colonial legislatures to be void, 
but I think little light is to be had from decisions or precedents of this kind. 
It is estimated by some writers, with apparent propriety, that the Privy 
Council in these cases, as in many other like cases more recently taken 
to it from colonies, acts legislatively quite as much as judicially. Whether 
we grant or deny this the relations between England and the colonies 
are and always have been so vastly different in every respect—so wide 
apart from the questions we are considering—that such decisions afford 
only false analogies. 

With this brief introduction we may proceed to consider succinctly 
the few cases in which the general principle is involved and which ante¬ 
date the formation of our Federal Constitution. 

AMERICAN CONSTITUTIONAL CASES PRIOR TO THE 
FORMATION OF THE CONSTITUTION 

1778—Josiah Philips—Virginia: 

While this is cited as a precedent for judicial review, it is the opinion 
of Professor Corwin (The Doctrine of Judicial Review, page 71) that “the 
claim is without any basis in fact.” The reference to it is contained in 
“Tucker’s Blackstone” wherein it is stated that “in May, 1778, an act 
passed in Va. to attaint one Josiah Philips, unless he should render himself 
to justice within a limited time. He was taken after the time expired and 
was brought before the general court to receive sentence of execution 
pursuant to the direction of an act. But the court refused to pass the 
sentence and he was put upon his trial according to the ordinary course of 
law.” 

It has been a question whether he was executed under the attainder, 
but according to Jefferson’s letter to William Wirt, August 14 , 1814 , it 
seems to have been thought that “the safest proceeding would be to indict 
him at common law as a felon and a robber.” (Works of Thomas Jeffer¬ 
son (Ford Edition) Vol. XI, p. 408 .) The result was that he was found 
guilty and apparently executed. 


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1780—Holmes v. Walton—New Jersey: 

In this case the legislature had provided for a jury of six, and the 
court refused to carry out this provision on the ground that the Constitu¬ 
tion was transgressed. The legislature appears afterward to have sub¬ 
mitted to the decision of the court to the extent at least of changing this 
provision. 

1782—Commonwealth v. Caton—Virginia: 

In.this case, as a matter of dicta, two judges asserted the right of the 
court to resist the unconstitutional act of the legislature, and the third 
judge was doubtful. (Corwin’s Doctrine of Judicial Review, page 73.) 

1784—Rutgers v. Waddington—New York: 

This case, instead of being an authority for, was one against the power 
of judicial review, the judge saying (Coxe’s Judicial Power and Uncon¬ 
stitutional Legislation, page 230) : 

“The supremacy of the legislature need not be called into question; if they think 
fit positively to enact a law, there is no power which can controul them. When the 
main object of such a law is clearly expressed, and the intention is manifest, the judges 
are not at liberty, altho’ it appears to them to be unreasonable, to reject it; for this 
were to set the judicial above the legislative, which would be subversive of all govern¬ 
ment.” 

1784—Symsbury—Connecticut: 

In this case the court determined that an act of the assembly intended 
to restrict and limit the extent of the jurisdiction of the town of Symsbury, 
could not legally operate to curtail without their consent the land granted 
to proprietors of the town. (Haines’ ‘‘American Doctrine of Judicial 
Supremacy,” page 88.) 

The legislature does not appear to have done anything further about 
the matter. It may not be considered so much as a precedent in favor 
of the judicial power as a judicial interpretation of a legislative act. 

1786—Trevett v. Weeden—Rhode Island: 

An act of the assembly had directed the imposition of a penalty for 
refusing paper money at face value and provided for a summary convic¬ 
tion without a jury. The Supreme Court of Rhode Island held the law 
unconstitutional, in this respect going beyond any other case in that the 
matter of unconstitutionality declared was not in the violation of any 
written document. It was held to consist in the denial of the common 
law trial by jury, the terms of a statute denying a jury but directing trial 
according to the “law of the land,” the court holding that there could be 
no trial according to the “law of the land” except by jury. The case is 
not, therefore, strictly in point of the question under consideration. In a 
fashion it goes beyond, in holding that there can be a law of the land 
apparently of greater force even than legislative or constitutional laws. 

It may be considered that the court in this case regarded the statute 


8 


as self-contradictory and for this reason refused to carry it out. If so, 
again it is not a true precedent as to the subject under consideiation. 

As a result of the giving of this decision the judges were called before 
the legislature to explain their conduct and, while not removed from office, 
were refused a reelection upon the expiration of their teim. 

1787—Bayard v. Singleton—North Carolina: 

This case was brought and decided immediately before the sitting of 
the Constitutional Convention. A statute had been passed to protect 
all persons purchasing land sold by commissioners of forfeited estates, 
the court being required on motion to dismiss suits to recover them. 
Nevertheless the court refused to follow the statute, contending “that by 
the Constitution every citizen has undoubtedly a right to a decision of his 
property by trial by jury. For that if the legislature could take away this 
right, and require him to stand condemned in his property without a trial, 
it might with as much authority require his life to be taken away without 
a trial by jury, and that he should stand condemned to die without the 
formality of any trial at all.” 

This decision was severely condemned by the then Governor of the 
state (Spaight), a member of the Federal Constitutional Convention, who 
wrote to James Iredell as follows: 

“. . . I do not pretend to vindicate the law, which has been the subject of 
controversy; it is immaterial what law they (the North Carolina judges) have 
declared void; it is their usurpation of the authority to do it, that I complain of, as I 
do most positively deny that they have any such power; nor can they find anything in 
the Constitution, either directly or impliedly, that will support them, or give them any 
color of right to exercise that authority. Besides, it would have been absurd, and 
contrary to the practice of all the world, had the Constitution vested such powers in 
them, as they would have operated as an absolute negative on the proceedings of the 
legislature, which no judiciary ought ever to possess, and the state, instead of being 
governed by the representatives in General Assembly would be subject to the will of 
three individuals, who united in their own persons the legislative and judiciary powers, 
which no monarch in Europe enjoys, and which would be more despotic than the 
Roman Decemvirate, and equally insufferable. If they possessed the power what 
check or control would there be to their proceedings? Or who is there to take the 
same liberty with them that they have taken with the legislature, and declare their 
opinion to be erroneous? None that I know of. In consequence of which, whenever 
the judges should become corrupt, they might at pleasure set aside every law, however 
just or consistent with the Constitution, to answer their designs; and the persons and 
property of every individual would be completely at their disposal. Many instances 
might be brought to show the absurdity and impropriety of such a power being lodged 
with the judges.” (Letter of Richard Dobbs Spaight to James Iredell, Philadelphia, 
August 12th, 1787.) 

The foregoing exhausts all known authentic precedents up to the time 
of the Constitutional Convention, although uncertain references to one 
or two other cases occur; for instance, in Plumer’s Life of William 
Plumer, page 59, is the following reference to a supposed case: 

“I entered my protest singly and alone against the bill for the recovery of small 
debts Jn an expeditious way and manner, principally on the ground that it was uncon¬ 
stitutional. The court so pronounced it, and the succeeding legislature repealed the 
law.” 


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Another case is suggested on the authority of a letter from Cutting 
to Jefferson in 1778 in which (Doctrine of Judicial Review, Corwin, page 
74) occurs the following: 

“It is asserted that the Mass, court had recently declared an act of the legislature 
unconstitutional and that the legislature had in consequence repealed the act.” 


A thorough search, however, failed to reveal any such case or act of 
repeal.. (A. C. Goddell, 7 Harvard Law Review, 415, ffg.) This case 
was probably one in which the court had ruled the act of the legislature 
involved to be repugnant to the treaty Of 1783 with Great Britain. The 
Massachusetts legislature had repealed all such acts April 20, 1787, by 
general description, in conformity with the demand of Congress. 

From the foregoing, without useless elaboration, it will appear that 
before the time of the convening of the Constitutional Convention, while 
Lord Coke had undertaken earlier to make a somewhat different assertion, 
nevertheless the statement by Blackstone of the omnipotence of the 
English Parliament gave the law of England. It is true that the colonies 
had rebelled, denying the power of Parliament to levy taxes upon- them 
without their consent. This denial, properly considered, was not a denial 
of the omnipotence of Parliament within the territorial limits over which 
its power extended, but rather the denial of its omnipotence in an un¬ 
represented country, loosely bound to the motherland. The argument, 
therefore, is not sound which suggests that the revolution was in any true 
sense a denial of the omnipotence of Parliament within its proper terri¬ 
torial limits. 

Furthermore, at the time of the convening of the Convention, the 
question of the supremacy of the judiciary among the American states 
under a written constitution was by no means settled. As we have seen, 
the judiciary claimed a supremacy over the legislature in Rhode Island 
without a written constitution and its claim was emphatically denied by 
the legislature, which refuses to reelect judges so using their power. In 
Connecticut the question had arisen in such a manner as not to attract 
the attention of the legislature in any serious way, and not to affect the 
general public, and the decision of the court had passed, as it were, sub 
silencio. In New York, while the judiciary had sought to construe a case 
out of the legislative intent, nevertheless in express terms it had recognized 
the superior power of the legislature. In New Jersey, the highest court 
had refused to recognize the binding force of an innovation made by the 
legislature upon the right of trial by jury and the legislature had acquiesced 
by changing the statute. In Virginia there had been nothing other than 
dicta, and in North Carolina the judges had undertaken to vindicate the 
Constitution as they construed it against the action of the legislature, and 
such course on the part of their part had met with very severe con¬ 
demnation. 

It is apparent, therefore, that differences of opinion existed, but it 


10 


pass to the next important subject for consideiation. 

THE FEDERAL CONSTITUTIONAL CONVENTION 

The jurisdiction to be given the judges was the subject of consKlerable 
debate in this convention. It is an error to say, as has repeatedly been 
alleged, that the convention three or four times refuse e g 

to the judiciary to set aside the acts of Congress. A confusion ar s 
from the fact that on several occasions the convention ret used to create, 
as was urged by Madison, a Council of Revision, consisting of the execu¬ 
tive and a convenient number of the judiciary, which would have a direct 
power of control and veto over acts of Congress, unless overruled by two- 

thirds of each branch. . , , . i 

Those who voted to refuse this power might, with almost equal pro¬ 
priety, have followed their course of action because (1) they believed that 
no bodv should be created having a power superior to that of Congress, 
or because (2) they believed that it would be much better to trust to the 
judiciary assuming such right when it should once be constituted. n 
point of fact, these diverse reasons appear to have led to the rejection *ot 
the proposition. Nevertheless, one very important fact is to be note , 
and to my mind it is a conclusive fact, so far as determining whether the 
Constitution, whatever might have been the secret intent of some of the 
framers, should or should not be construed as giving judicial control oyer 
the validity of legislative acts—the Constitution did give the executive 
a veto, and it is to be assumed that the convention was convinced this veto 
would be exercised in any case where the executive believed the Constitu¬ 
tion was in danger of violation. We quote from Haines’ “American 
Doctrine of Judicial Supremacy,” page 144: 

“A motion to postpone the discussion of a Council of Revision and to consider 
the veto by the President was seconded by Mr. King who observed ‘that the judges 
ought to be aide to expound the law as it should come before them free from the bias 
of having participated in the formation.’ On June 4 by a veto of eight states to two, 
it was decided to drop the plan of a Council of Revision, and to adopt the executive 
veto instead .” [Italics mined 


Madison, upholding the proposition of a Council of Revision, claimed 
that “whether the object of the revisionary power was to restrain the 
legislature from encroaching on the other subordinate departments, or on 
the rights of the people at large, or from passing laws unwise in their 
principle, or incorrect in their form, the utility of annexing the wisdom 
and weight of the judiciary and the executive seemed incontestable.” 

Gerry, however, thought that the executive standing alone “would be 
more impartial than when he could be covered by the sanction and seduced 
by the sophistry of the judges.” 

The substantially essential fact is that while the Constitutional Con- 


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11 


vention had every opportunity, had it so desired, of expressing itself in 
favor of the power of judicial review, it did not do so, but merely united 
the executive with Congress, as we may believe, in determining among 
other things, the constitutionality of laws. 

While it is true that the major consideration with us must be what 
the convention actually did, rather than what the individual members 
hoped or believed would be the effect of their action, we may take a 
moment to refer to the attitude of the several members upon the general 
subject. I do this more to indicate how unsafe it would be to trust our¬ 
selves to this method of constitutional interpretation than as indicating, 
under the circumstances explained, its importance. 

Professor Charles A. Beard, of Columbia University, has written a 
little work, “The Supreme Court and the Constitution,” seeking to demon¬ 
strate that the very large majority of the members of the Constitutional 
Convention favored the judicial power of passing upon the constitution¬ 
ality of congressional acts. With great industry he has examined their 
expressions of opinion in the Constitutional Convention, and in their 
published writings, and has drawn inferences not always, as I believe, 
sufficiently sustained by the facts, from the votes of such as were also 
members of the first Congress. Among those whom he classes as the 
twenty-five leaders, he would list seventeen as in favor of the proposition, 
with but eight opposing. His calculations are reviewed and criticised 
in many respects justly, as I am convinced, by Horace A. Davis in his 
work, “The Judicial Veto,” with the conclusion on his part that there were 
eleven for and sixteen against judicial control out of forty-eight members 
who either signed the Constitution or took a fairly active part in its making. 

It fell to Gouverneur Morris to prepare the final draft of the Con¬ 
stitution, and years later, indicating at once the relative unimportance of 
the whole subject of the opinions of the signers, and also indicating the 
purpose for which the judiciary clause was prepared, he wrote as follows: 

“My Dear Sir: What can a history of the Constitution avail towards inter¬ 
preting its provisions ? This must be done by comparing the plain import of the words 
with the general tenor and object of the instrument. That instrument was written by 
the fingers which write this letter. Having rejected redundant and equivocal terms, 
I believe it to be as clear as our language would permit; excepting, nevertheless, a 
part of what relates to the judiciary. On that subject, conflicting opinions had been 
maintained with so much professional astuteness, that it became necessary to select 
phrases which, expressing my own notions, would not alarm others nor shock their 
self-love; and to the best of my recollection, this was the only part that passed without 
cavil.” 

As Mr. Davis says, (page 69), it would be difficult to understand 
Morris’ allusion to “conflicting opinions”— 

“if on the important subject of judicial review of legislation the members had been 
practically unanimous—twenty-five (including all the active ones who expressed 
themselves) against five (according to Professor Beard’s final list—or three, if we 
exclude Butler and Langdon) ; but with such an even split in opinion as is indicated 
by my list, it is easy to understand that tact and skill in selecting phrases became 
indispensable. 






12 

“Is it not the legitimate inference that the power of judicial control was neither 
overlooked nor attempted to be slipped in by indirect or ambiguous phrases, but that 
it was intentionally omitted?” 

I think we may also justly believe that the omission was intentional, 
because the members of the convention well understood that if it had been 
expressly adopted, the difficulty of securing ratification by the states, 
in view of the differences of opinion which we have already explained 
would have been infinitely multiplied. 

It is interesting to note that one member, Charles Pinckney of 
South Carolina, wrote in 1799 that— 

“Upon no subject am I more convinced that it is an unsafe and dangerous doctrine 
in a Republic ever to suppose that a judge ought to possess the right of questioning or 
deciding upon the constitutionality of treaties, laws, or any act of the legislature. It 
is placing the opinion of an individual or of two or three above that of both branches 
of Congress; a doctrine which is not warranted by the Constitution, and will not, 
I hope, long have many advocates in this country.” Wharton’s State Trials, 412, 
quoted in Thayer’s “John Marshall.” 

It is true that Hamilton and Madison in the “Federalist” claimed the 
right in the Supreme Court to review, and, in effect, nullify an act of 
Congress, but under the judiciary act adopted by th'e first Congress under 
the Constitution, the power of review was granted to the Supreme Court 
only under limited circumstances as on appeal from a state court in the 
cases set forth in the extracts from the Judiciary Act of 1789 following 
the extracts from the Constitution of the United States under the next 
heading. 

That no part of the judiciary act gave the Supreme Court jurisdic¬ 
tion to set aside acts of Congress is made plain by Davis’ “The Judicial 
Veto,” and it is not necessary for our purposes to spend time upon the 
argument. 

CONSTITUTIONAL PROVISIONS BEARING UPON JUDICIAL 
POWER AND ACTION THEREUNDER OF FIRST 

CONGRESS 

The constitutional provisions important to be borne in mind in con¬ 
nection with the discussion which must follow are: 

ARTICLE III. 

Section 1. The judicial power of the United States shall be vested in one 
Supreme Court, and in such inferior courts as the Congress may from time to time 
ordain and establish. The judges, both of the supreme and inferior courts, shall hold 
th^ir offices during good behavior, and shall, at stated tifnes, receive for their services 
a compensation, which shall not be diminished during their continuance in office. 

Sec. 2. The judicial power shall extend to all cases, in law and equitv, arising 
under tins Constitution, the laws of the United States, and treaties made,'or which 
shall be made, under their authority; to all cases affecting ambassadors, other public 
ministers and consuls; to all cases of admiralty and maritime jurisdiction; to con¬ 
troversies to which the United States shall be a partv; to controversies between two 
or more states; between a state and citizens of another state; between citizens of 


\ 


13 

different states; between citizens of the same state claiming lands under grants of dif¬ 
ferent states, and between a state, or the citizens thereof, and foreign states, citizens 
or subjects. 

In all cases affecting ambassadors, other public ministers and consuls, and those 
in which a state shall be a party, the Supreme Court shall have original jurisdiction. 
In all the other cases before mentioned, the Supreme Court shall have appellate juris¬ 
diction, both as to law and facts, with such exceptions and under such regulations as 
the Congress shall make. 

ARTICLE VI. 

This Constitution and the laws of the United States which shall be made in pur¬ 
suance thereof, and all treaties made, or which shall be made, under the authority of 
the United States, shall be the supreme law of the land; and the judges in every state 
shall be bound thereby, anything in the Constitution or laws of any state to the con¬ 
trary notwithstanding. 

ARTICLE XI.— Amendment. 

The judicial power of the United States shall not be construed to extend to any 
suit in law or equity, commenced or prosecuted against one of the United States by 
citizens of another state, or by citizens or subjects of any foreign state. 

We extract from the Judiciary Act enacted September 24, 1789, as 
follows: 

Sec. 13. And be it further enacted, That the Supreme Court shall have exclusive 
jurisdiction of all controversies of a civil nature, where a state is a party, except 
between a state and its citizens; and except also between a state and citizens of other 
states, or aliens, in which latter case it shall have original but not exclusive jurisdic¬ 
tion. And shall have exclusively all such jurisdiction of suits or proceedings against 
ambassadors, or other public ministers, or their domestics, or domestic servants, as a 
court of law can have or exercise consistently with the law of nations; and original, 
but not exclusive, jurisdiction of all suits brought by ambassadors, or other public 
ministers, or in which a consul or vice-consul shall be a party. And the trial of issues 
in fact in the Supreme Court, in all actions at law against citizens of the United 
States, shall be by jury. The Supreme Court shall also have appellate jurisdiction 
from the circuit courts and courts of the several states, in the cases hereinafter 
specially provided for; and shall have power to issue writs of prohibition to the dis¬ 
trict courts, when proceeding as courts of admiralty and maritime jurisdiction, and 
writs of mandamus, in cases warranted by the principles and usages of law, to any 
courts appointed, or persons holding office, under the authority of the United States. 

Sec. 22. And be it further enacted, That final decrees and judgments in civil 
actions in a district court, where the matter in dispute exceeds the sum or value of 
fifty dollars, exclusive of costs, may be re-examined, and reversed or affirmed in a 
circuit court, holden in the same district, upon a writ of error, whereto shall be 
annexed and returned therewith at the day and place therein mentioned, an auffienti- 
cated transcript of the record, an assignment of errors, and prayer for reversal, with 
a citation to the adverse party, signed by the judge of such district court, or a justice 
of the Supreme Court, the adverse party having at least twenty days’ notice. And 
upon a like process, may final judgments and decrees in civil actions, and suits in 
equity in a circuit court, brought there by original process, or removed there from 
courts of the several states, or removed there by appeal from a district court where 
the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of 
costs, be re-examined and reversed or affirmed in the Supreme Court, the citation 
being in such case signed by a judge of such circuit court, or justice of the Supreme 
Court, and the adverse party having at least thirty days’ notice. 

Sec. 25. And be it further enacted. That a final judgment or decree in any suit, in 
the highest court of law or equity of a state in which a decision in the suit could be 
had where is drawn in question the validity of a treaty or statute of, or an authority 


14 


exercised under the United States, and the decision is against their validity; or where 
is drawn in question the validity of a statute of, or an authority exercised under any 
state, on the ground of their being repugnant to the Constitution, treaties or laws of 
the United States, and the decision is in favour of such their validity, or where is 
drawn in question the construction of any clause of the Constitution, or of a treaty, 
or statute of, or commission held under the United States, and the decision is against 
the title, right, privilege or exemption specially set up or claimed by either party, 
under such clause of the said Constitution, treaty, statute, or commission, may be re¬ 
examined and reversed or affirmed in the Supreme Court of the United States upon a 
writ of error, the'citation being signed by the chief justice, or judge or chancellor 
of the court rendering or passing the judgment or decree complained of, or by a justice 
of the Supreme Court of the United States, in the same manner and under the same 
regulations, and the writ shall have the same effect, as if the judgment or decree 
complained of had been rendered or passed in a circuit court, and the proceeding upon 
the reversal shall also be the same, except that the Supreme Court, instead of 
remanding the cause for a final decision as before provided, may at their discretion, 
if the cause shall have been once remanded before, proceed to a final decision of the 
same, and award execution. But no other error shall be assigned or regarded as a 
ground of reversal in any such case as aforesaid, than such as appears on the face 
of the record, and immediately respects the before mentioned questions of validity or 
construction of the said Constitution, treaties, statutes, commissions, or authorities in 
dispute. 

Sec. 34. And be it further enacted , That the laws of the several states, except 
where the Constitution, treaties, or statutes of the United States shall otherwise require 
or provide, shall be regarded as rules of decision in trials at common law in the courts 
of the United States in cases where they apply. 


THE COURSE OF THE FEDERAL SUPREME COURT AND 
EARLY UNITED STATES CIRCUIT COURTS IN DECID¬ 
ING ACTS OF CONGRESS UNCONSTITUTIONAL 

Courts of the United States had scarcely been organized before an 
application was made to the Supreme Court of the United States (Hey- 
burn’s Case, 2 Dallas, 409) for the issuance of mandamus to be directed 
to the Supreme Court of Pennsylvania, commanding it to put Heyburn 
on the pension lists of the United States as an invalided pensioner under 
the Act of March 23, 1792. The Supreme Court never decided the ques¬ 
tion of its right to take jurisdiction or issue mandamus as prayed, unless 
the case of Yale Todd referred to in a note to 13 Howard, page 52, be con¬ 
sidered a real authority, as to which quaere? But all of the Circuit Courts 
of the United States considered it, arriving at substantially like results. 
The circuit judges for the District of New York agreed “that by the Con¬ 
stitution of the United States the government thereof is divided into three 
distinct and separate branches, and that it is the duty of each to abstain 
from and to oppose encroachment on either. That neither the legislature 
nor the executive branches can constitutionally assign to the judicial any 

duties but such as are properly judicial and to be performed in a judicial 
manner. J 

The Circuit Court for the District of Pennsylvania took a like posi¬ 
tion, in the first place, because the business directed by this act is not of 


15 


/ 


a judicial nature. It forms no part of the power vested by the Constitu¬ 
tion in the courts of the United States; the Circuit Court must, conse¬ 
quently, have proceeded without constitutional authority.” 

The Circuit Court of North Carolina, including Judge Iredell, after¬ 
wards on the Supreme Court of the United States, was of a like opinion. 

About the same time as the foregoing occurred an incident quoted 
in Thayer’s “John Marshall,” page 66-67, obtained by him from an article 
by Chancellor Kent in 3 New York Review, page 347 (1838). Mr. 
Thayer says: 

. “We find that the judges of the Supreme Court had hardly taken their seats at 
the beginning of the Government when Chief Justice Jay and several other judges 
communicated to the President objecting to the judiciary act as violating the Con¬ 
stitution in naming the judges of the Supreme Court to be judges also of the Circuit 
Courts. These judges, however, did not refuse to act under this unconstitutional 
statute. This acquiescence was in Marshall’s time treated by the majority of the 
judges as setting the question at rest.” 

The first clear case before the Supreme Court, in which its power 
to declare invalid an act of Congress was sustained, was that of Marbury 
v. Madison, 1 Cranch, 137, decided in 1803, although a table of cases 
of acts of Congress declared to be unconstitutional as contained in an 
appendix attached to Vol. 131 of United States Reports, based upon a 
note in 13 Howard, page 52, refers to United States v. Yale Todd, as 
decided in 1794. It is stated that by the doctrine of this (Yale Todd) 
case an act of Congress of March 23, 1792, was held to be unconstitutional 
as attempting to confer upon the court power which was not judicial. Its 
authenticity, however, has been shown to be doubtful. Certainly its 
authority must be so considered. (See Coxe’s Judicial Power and Uncon¬ 
stitutional Legislation, pages 11-16.) 

One of the last acts of the administration of John Adams was to 
appoint Marbury as Justice of the Peace in the District of Columbia. 
The commission was not delivered, and Marbury brought original suit 
in the Supreme Court of the United States to enforce its delivery. This 
w T as rather unnecessarily made the occasion on the part of Chief Justice 
Marshall to declare the power to exist in the Supreme Court to virtually 
invalidate acts of Congress as unconstitutional. In the course of his 
opinion he held that: 

“The powers of the legislature are defined and limited; and that those powers 
may not be mistaken, or forgotten, the Constitution is written. . . . The distinc¬ 
tion between a government with limited and unlimited powers is abolished, if those 
limits do not confine the persons on whom they are imposed, and if acts prohibited and 
acts allowed are of equal obligation. It is a proposition too plain to be contested, that 
the Constitution controls any legislative act repugnant to it; or, that the legislature 
may alter the Constitution by an ordinary act. Between these alternatives there is no 
middle ground. The Constitution is either a superior paramount law, unchangeable 
by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, 
is alterable when the legislature shall please to alter it. . . . Certainly all those 
who have framed written constitutions contemplate them as forming the fundamental 
and paramount law of the nation and, consequently, the theory of every such govern¬ 
ment must be that an act of the legislature, repugnant to the Constitution, is void. 


/ 


16 


“This theory is essentially attached to a written constitution, and is consequently 
to be considered by this court as one of the fundamental principles of our society. It 
is not, therefore, to be lost sight of in the further consideration of this subject. 

“If an act of the legislature, repugnant to the Constitution, is void, does it, not¬ 
withstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in 
other words, though it be not law, does it constitute a rule as operative as if it was a 
law? This would be to overthrow in fact what was established in theory, and would 
seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive 
a more attentive consideration.” 

Continuing in the argument of the subject, he said: 

“So, if a law be in opposition to the Constitution: if both the law and the Con¬ 
stitution apply to a particular case, so that the court must either decide that case 
conformably to the law, disregarding the Constitution, or conformably to the Con¬ 
stitution, disregarding the law, the court must determine which of these conflicting 
rules governs the case. This is of the very essence of judicial duty.” 

This whole argument ignores what we must believe to have been the 
real question involved in his propositions, which we would state in this 
manner: If the Congress in the discharge of its duty under the Con¬ 
stitution has determined in its opinion by passing an act that a certain 
law is necessary, and if the executive, in the discharge of his duty under 
the Constitution has signed and approved the act, or, over his veto, two- 
thirds of both houses, their attention being necessarily drawn to the act 
and all questions concerning it, interprets the Constitution favorably to 
the passage of the act, has the judiciary a right to supervise, and, according 
to its own ideas, affirm or reverse the action of two coordinate branches 
of the government acting legislatively, or, in the second event of at least 
two-thirds of both houses of one coordinate branch? And, stating the 
proposition in other terms, if we concede that there are three equal co¬ 
ordinate branches of the government, is not such concession fatal to the 
idea that one branch can destroy the work of the others on some theory of 
its own, relative to the subject of constitutionality? 

Despite the ingenious arguments to the contrary, it must be confessed 
that from the face of the Constitution as we have recited it, no power can 
be presumed to exist in any one branch of the government to nullify the 
action of another acting within the scope of its authority under the Con¬ 
stitution. In opposition to this it will be observed that the argument is 
made that when Congress passes an unconstitutional act such act is' in 
excess of its powers under the instrument creating it, and should not be 
enforced. But this is reasoning in a circle, because no power is given to 
any body other than Congress to determine the question of constitution¬ 
ality, and the courts, as has been explained, can not do it without Congress 
ceasing to be coordinate and becoming a simple subordinate branch of 
the government. 

Chief Justice Marshall might well have declared in passing upon a 
congressional statute, that Congress and the President, having declared 
it to be constitutional, the court had no power to take a different position 
without transgressing upon the functions of Congress and the Executive. 


17 


as it would do in repealing, or at least declaring void, a law regularly 
adopted. 

It is interesting to note that at one period in his history Chief Justice 
Marshall had advocated precisely this view of the matter. In Ware, 
Administrator, v. Hylton, 3 Dallas, 199, Marshall, the lawyer (page 211), 
said: 

“The legislative authority of any country can only be restrained by its own 
municipal constitution. This is a principle that springs from the very nature of 
society; and the judicial authority can have no right to question the validity of a law 
unless such a jurisdiction is expressly given by the constitution. It is not necessary to 
enquire how the judicial authority should act, if the legislature were evidently to 
violate any of the laws of God; but property is the creature of civil society, .and sub¬ 
ject, in all respects, to the disposition and control of civil institutions.” 

As bearing upon principles enunciated in later decisions of the Su¬ 
preme Court the foregoing excerpt from the argument becomes interesting 
when it is argued that because an individual has not the power of extin¬ 
guishing his debts, the community to which he belongs, may not, upon 
principles of public policy, prevent his creditors from recovering them. 
It must be repeated that our law of property in its origin and operation 
is the offspring of the social state; not the incident of a state of nature. 

Both as suggested and for other reasons which limitations of space 
prohibit our enlarging, the case of Marbury v. Madison, the most discussed 
case probably ever considered by the Supreme Court, may be criticised. 
It is sufficient for the present to say that with all its imperfections on its 
head, if the doctrine of this case had never gone beyond the point at which 
it should have legitimately stopped, there would have been little, if any, 
ground of complaint on the part of any one. The real point of public 
moment decided in the case, although doubtless unnecessary to be con¬ 
sidered, was simply that Congress had no power to enlarge jurisdiction in 
original cases, granted, as the judges conceived, by the Constitution. 

Very plausible arguments could be made consistent with the general 
view entertained in this Study and Report in favor of Congress having no 
right under the Constitution of changing the bounds of jurisdiction which 
the courts might conceive to have been given them by the Constitution, 
and to justify them in resisting what they believed to be unconstitutional 
extension by another branch of the government of the powers which they 
as a coordinate branch were bound to exercise. And the decision in 
Marbury v. Madison was in its essence a declaration that the court would 
not exercise an original jurisdiction which was not granted it by the 
Constitution. 

But the decision now under discussion went far and beyond the legal 
necessities of the case, and claimed for the judiciary the broadest possible 
power of determination under all circumstances whether an act of Con¬ 
gress was or was not within the bounds fixed by the Constitution. 


18 


THEORY OF PUBLC AGENCY 

Before leaving the discussion of the case of Marbury v. Madison, it 
may be as well now as at any other time to discuss a theory much elabo¬ 
rated by defenders of judicial control over legislative acts and which is set 
out among other places, quite fully in Bryce s American Commonwealth, . 
chap. 23. 

In brief, it is argued that the several branches of the government, 
legislative, executive and judicial, possess and are entitled to exercise only 
such powers as are given each of them by the Constitution. 1 hat in the 
strictest sense they are agents of a superior—the people—who have only 
named them to exercise the people’s various functions as a matter of 
political convenience. That the position of these several branches is no 
stronger or better than would be the position of a board of directors of 
a private corporation which might be authorized to pass by-laws to a 
certain extent and whose ultra vires use of this limited power would 
immediately be declared void by any court before which the question 
should be brought in appropriate form. 

Then, by a sort of logical legerdemain, the conclusion is instantly 
reached that the acts of a legislature in excess of constitutional powers are 
to be so declared and set at naught by the judiciary. This clears at 
a bound the difficulty that the courts have not been vested with this 
power in dealing with acts of coordinate branches of the government, 
although vested with judicial powers as between private individuals and 
in certain instances to controversies in which the government or others 
have a part. 

But aside from this consideration, as is so often the case with sup¬ 
posed analogies differing in vital respects, it refers to conditions which 
are not analogous. 

If the act of an agent is void as in excess of the powers granted him, 
an ordinary remedy therefor in civil cases is to be found in an action by 
the principal to set aside the thing done. In the matter we are discussing 
the principal is the people at large and no method has yet been devised by 
which the people at large may proceed in a court of justice to set aside the 
act of any one of their three classes of agents as being unconstitutional. 

In other words, if the President or the Congress is to indulge in an un¬ 
constitutional act the people are never heard judicially on the subject, but 
by assumption of power the courts usually make the declaration in an 
action between private individuals in which the people, whose constitu¬ 
tional rights are alleged to have been violated, are not' before the court 
either as movers or defendants. The analogy, therefore, fails in this 
vital respect. 

Again, it is not true that under all circumstances, even under existing 
rules of justice, the courts will examine into the question as to whether the 
limitations of power imposed by the principal have been violated bv the 
agent. For instance, without authority, an agent to lease has sold a piano; 
a third party has, without right, taken the piano from the purchaser to 


19 


whom the agent could have conveyed no good title; the courts in an 
action of replevin will not at all consider the question whether the pur¬ 
chaser is the real owner or not. It will be sufficient for the court that he 
is in possession. 

Nor is it true that the Supreme Court of the United States has always 
followed the doctrines of the law of agency in dealing with the actions of 
other branches of government. It will suffice upon this proposition 
to refer to the case of Fletcher v. Peck, 5 Cranch, page 87 , 3 Law. Ed., 
page 162. The State of Georgia by a bill passed by its legislature under¬ 
took to convey immense tracts of land in Mississippi, then under the 
control of Georgia, to a private individual who afterwards conveyed his 
interest in some of them to a party to the suit. The original grant was 
the result of the grossest possible‘bribery of the Georgia legislature. 
In the case under discussion Chief Justice Marshall held that the courts 
were not at liberty to go behind the actions of a branch of the state 
■ government and refused to invalidate the grant. The court, according to 
one of the judges, might readily have declined jurisdiction, for he said: 

“I have been very unwilling- to proceed to the decision of this case at all. It 
appears to me to bear strong evidence, upon the face of it, of being a merely feigned 
case. It is our duty to decide on the rights but not on the speculations of parties. 
My confidence, however, in the respectable gentlemen who have been engaged for the 
parties, has induced me to abandon my scruples in the belief that they would never 
consent to impose a mere feigned case upon this court.” 

The effect of the decision in Fletcher v. Peck was to make secure titles 
which might thereafter be obtained through the corruption of legislatures, 
but with this phase of the discussion we are not concerned. It is sufficient 
for our purpose to say now, so far as the reasoning based upon the powers 
of a mere agent is concerned, that if the legislature is a mere agent and if 
the judiciary has a right to set aside the act Of such agent or any other 
agent than itself, because of lack of power to do the thing attempted to be 
performed, then it must have an equal power through the instrumentality 
of a court of equity to set aside as fraudulent the act of such an agent 
when induced by corruption. It is not an extraordinary thing in private 
practice to have a deed made by an agent for a principal set aside because 
of his corrupt act. This the Supreme Court declined to do in the case 
of Fletcher v. Peck, although it said much of the inconvenience of 
reviewing the act of another branch of government under such cir¬ 
cumstances. Thus is repudiated the doctrine of breach of agency on 
the part of the law-making power as foundation for the courts’ jurisdiction 
over some legislative acts. It should not have assumed, nevertheless, 
a kindred jurisdiction over other acts of legislative power. 

We can not forbear from referring to another respect in which the well- 
understood doctrine of agency as affording a foundation for the judicial 
control of legislative acts has been departed from; doing this on our part 
for the purpose of demonstrating further, if such demonstration were 
necessary, that the Supreme Court gets no power over the legislature on 


20 


any theory of restricted powers conferred upon the seveial agencies of 

the government. . 

A well-understood principle of the law of agency is that where a per¬ 
sonal trust has been imposed upon the agent, this trust to be exercised as 
the result of the judgment of the individuals in whom it is reposed, such 
trust may not be delegated to another in whom the constituent has not 
reposed his personal faith. With this premise we may say that the power 
of taxation, the power, in other words, of obtaining the very lifeblood of 
government, is a powder vested by the constitutions of the United States 
and of the several states in the legislative authorities for the time being. 
There is no right in them to surrender this control to any one else or to 
abdicate it, or, under the Constitutions, to prevent recurrent legislatures 
from exercising such power as the occasion for its exercise may annually 
or biennially arise in the future. In other words, it is a personal trust in 
the legislature for the period of time covered by the jurisdiction of each 
elected body and is not a power which one legislature may exercise for a 
time in the future beyond the time of its fixed mandates under the Con¬ 
stitution. 

Nevertheless, acts of the legislature by which that body has under¬ 
taken to abandon for little or no consideration its power or the powers of 
its successors, to levy constitutional taxes, have been sustained by the 
Supreme Court, and acts of subsequent legislatures attempting to resume 
the powers of which they have been deprived without their consent have 
been held void as impairing the obligations of contracts. In other words, 
contracts entered into by the legislature without power to exempt a cor¬ 
poration from certain taxation, have been held as superior to the obligation 
of the legislature to confine its grants within the limits of its own con¬ 
stitutional regulations. 

Without elaborating any discussion as to the propriety of this course, 
I have again to remark that it illustrates another departure from the strict 
theory of agency so often urged in defense of the assumption of judicial 
power to declare legislative acts unconstitutional. 

DECISIONS FOLLOWING MARBURY v. MADISON 

It is interesting to note that although the case of Marbury v. Madison 
was decided in 1803, for forty-eight years thereafter the Supreme Court 
never ventured to declare unconstitutional a single act of Congress, and 
the next occasion for the exercise of this assumed power was in 1851 in the 
case of Ferreira (13 How., page 40). It was then determined that certain 
acts of Congress conferred upon the District Courts of the United States 
powers which were not judicial; that such acts were therefore void and 
that the Supreme Court of the United States would not assume appellate 
jurisdiction under them. 

It is manifest, without our indulging in any extensive commentary, 
that this case falls within the exact lines to which the Supreme Court 




21 


/ 


might well have limited itself in its language in Marbury v. Madison. In 
other words, it is to be treated merely as the declaration by the Supreme 
Court as to what constitutes its judicial power under the Constitution of 
the United States. 

It is true that during the forty-eight years which elapsed between the 
two decisions many acts of state legislatures had been declared uncon¬ 
stitutional, but the groundwork of these decisions was entirely different 
as we shall elsewhere undertake to show. 

From 1851 we pass to 1857 to discover the next occasion for the 
declaration of the unconstitutionality of an act of Congress. We refer 
to the historic case of Dred Scott v. Sandford (19 How., 393). 

Scott was a slave belonging to an army officer named Emerson; was 
taken from his home in Missouri, first to the free state of Illinois, and then 
into that portion of the national territory in which, by the eighth section 
of the Missouri Compromise of 1820, slavery had been forever prohibited. 
Master and slave remained there two years before returning to Missouri. 
In 1852 Scott sued his master for freedom in one of the lower state courts 
and won the action. On appeal the decision was reversed by the Supreme 
Court of the state upon the ground that appellee’s status at home was 
fixed by state law regardless of what it had been abroad.- The case was 
remanded to the inferior court for retrial, but Scott having become the 
property of Sandford, a citizen of New York, decided to bring an entirely 
new action in the United States Circuit Court for the Missouri District 
and in so doing averred his citizenship of Missouri, which was traversed 
by a plea in abatement, denying the jurisdiction of the court upon the 
ground that the plaintiff was a descendant of African slaves and had been 
born in slavery. This plea was overruled and the court found the merits 
of the case for the defendant, and upon this decision Scott appealed to the 
United States Supreme Court. After the final argument, as is learned 
from a letter of Justice Curtis, the court in its then view of the case did 
not believe it would be necessary to discuss the question of the constitu¬ 
tionality of the Missouri Compromise. Without reviewing the inner 
history of the whole decision, we may say that a different course was 
taken and the majority of the court decided the Missouri Compromise 
unconstitutional, Chief Justice Taney saying, among other things: 

“An act of Congress which deprives a citizen of the United States of his liberty 
or property, merely because he came himself or brought his property into a particular 
territory of the United States, and who had committed no offense against the laws, 
could hardly be dignified with the name of due process of law. . . . The powers over 
person and property of which we speak are not only granted to Congress but are 
in express terms denied. . . . And no word can be found in the Constitution which 
gives Congress a greater power over slave property, or which entitles property of that 
kind to less protection than property of any other description. The only power con¬ 
ferred is the power coupled with the duty of guarding and protecting the owner in his 
rights.” 

I shall quote perhaps the latest writer, Judge Maurice Donohue, who 
writing in the Journal of the American Bar Association for August, 1923, 


22 




said: “This decision perhaps more than any other one cause precipitated 
the Civil War for the determination of the long disputed question of 
state rights.” I take the opportunity to quote as to this case the words 
of President Lincoln in his first inaugural. He said: 

“I do not forget the position, assumed by some, that constitutional questions are 
to be decided by the Supreme Court; nor do I deny that such decisions must be bind¬ 
ing in any case, upon the parties to a suit, as to the object to that suit, while they are 
also entitled to very high respect and consideration in all parallel cases by all other 
departments of the government. And while it is obviously possible that such decision 
may be erroneous in any given case, still the evil effect following it, being limited 
to that particular case, with the chance that it may be overruled and never become a 
precedent for other cases, can better be borne than could the evils of a different 
practice. At the same time, the candid citizen must confess that if the policy of the 
government, upon vital questions affecting the whole people, is to be irrevocably 
fixed by decisions of the Supreme Court, the instant they are made, in ordinary litiga¬ 
tion between parties in personal actions, the people will have ceased to be their own 
rulers, having to that extent practically resigned their government into the hands of 
that eminent tribunal. Nor is there in this view any assault upon the court or the 
judges. It is a duty from which they may not shrink to decide cases properly brought 
before them, and it is no fault of theirs if others seeks to turn their decisions to 
political purposes.” 


POLITICAL NATURE OF JUDICIAL CONTROL OVER 

LEGISLATIVE ACTS 

It will, perhaps, not be out of place in connection with this case, to 
call attention to the real nature of the power exercised by the Supreme 
Court in declaring acts of Congress unconstitutional; that is to say, 
whether it is strictly judicial or is political in character. At the time of 
the announcement of the decision the judges doubtless wished the public 
to consider that they were indulging in a judicial act, but with the clearer 
vision of the present day it would scarcely be denied by any one that what 
they did was to undertake—in fact, some of their intimate discussions as 
we now know them show they intended—to settle the political issue, the 
hope was a vain one. Political issues are determined on their merits, as 
the people in the end believe them to be, and not by the dicta of judges 
whether obiter or not. The error, however, committed in the Dred Scott 
decision of undertaking through the courts to exercise a clearly political 
power, has been repeated in numerous instances by the Supreme Court 
of the United States and of the several states. P uourt 

It is true that the Supreme. Court has several times stated, notwith- 
stanchng the assertion .we have just made, that it will not interfere with 
the determination of a political question by the other departments of the 
government .(Luther v. Borden, 7 How.. 1, 12 Law. Ed, 581 ; Taylor 
Beckham, 178 U. S„ 548, 44 Law. Ed., 1187; Pacific States Telegraph & 
Telephone Company Oregon, 223 U. S„ 118, 56 Law. Ed., 377 ) But 
it has never defined what it meant by the term “political question ” In¬ 
asmuch as the cases as to which this declaration was made have concerned 


23 


treaties, the recognition of foreign governments, and the determination of 
the question as to who were properly state officers, or what constituted a 
republican form of government, we may assume that the Supreme Court 
believed that the term was limited in its application to cases of these 
natures; the more so as it has not hesitated to interpose in other questions 
of social and political importance. 

Whatever may have been in the minds of the judges, however, both 
the friends and the foes of judicial control over legislative acts have been 
quick to perceive that in exercising such control the Supreme Court was 
indulging in the exercise of political or legislative power. While the 
friends of this power have urged the necessity of some check upon the 
actions of the legislature, its enemies have had much to say with regard to 
the necessity of keeping the legislative power entirely separate from and 
free from interference by the judiciary. 

The earliest and one of the best foreign writers, touching upon the 
functions of the Supreme Courts in the United States, saw clearly that by 
the exercise of the power to declare acts unconstitutional they were per¬ 
forming purely political acts. Let us quote the opinion of De Tocque- 
ville in chapter 6 of his “Democracy in America”: 

“The judicial organization of the United States is the institution which a stranger 
has the greatest difficulty in understanding. He hears the authority of a judge invoked 
in the political occurrences of every day, and he naturally concludes that in the United 
States the judges are important political functionaries; nevertheless, when he examines 
the nature of the tribunals, they offer nothing which is contrary to the usual habits 
and privileges of those bodies, and the magistrates seem to him to interfere in public 
affairs of chance, but by a chance which occurs every day. 

“When the Parliament of Paris remonstrated or refused to enregister an edict, 
or when it summoned a functionary accused of malversation to its bar, its political 
influence as a judicial body was clearly visible; but nothing of the kind is to be seen in 
the United States. The Americans have retained all the ordinary characteristics of 
judicial authority, and have carefully restricted its action to the ordinary circle of its 
functions. 

“His [an American judge’s! position is therefore perfectly s'milar to that of the 
magistrate of other nations; and he is nevertheles invested with immense political 
power. If the sphere of his authority and his means of action are the same as those 
of other judges, it may be asked whence he derives a power which they do not possess. 
The cause of this difference lies in the simple fact that the Americans have acknowl¬ 
edged the right of the judges to found their decisions on the Constitution rather than 
on the laws. In other words, they have left them at liberty not to apply such laws 
as mav appear to them to be unconstitutional. . . . 

“It is easy to perceive in what manner these differences must act upon the posi¬ 
tion and the rights of the judicial bodies in the three countries I have cited. If iti 
France the tribunals were authorized to disobey the laws on the ground of their being 
opposed to the constitution, the supreme power would in fact be placed in their hands, 
since they alone would have the right of interpreting a constitution, the clauses of 
which can be modified by no authority. They would therefore take the place of the 
nation, and exercise as absolute a sway over society as the inherent weakness of 
judicial power would allow them to do.” 

While De Tocqueville argues in favor, so far as the United States are 
concerned, of the exercise of this power by the courts, nevertheless the fact 




24 


I 

/ 


remains, as shown, that the power is purely political and, therefore, not 
judicial. 

The central purpose of the work of Brooks Adams, “The Theory of 
Social Revolutions,” is to show the political character of the work of the 
Supreme Court. As bearing upon this, the idea appearing in many ways 
in the course of his volume, we quote from page 104, referring to the case 
of Chicago, Milwaukee & St. Paul Railway v. Minnesota, 134 U. S., 461: 

“When the Supreme Court thus undertook to determine the reasonableness of 
legislation it assumed, under a somewhat thin disguise, the position of an upper cham¬ 
ber, which, though it could not originate, could absolutely veto most statutes touching 
the use or protection of property, for the administration of modern American society 
now hinges on this doctrine of judicial dispensation under the police power. Whether 
it be a regulation of rates and prices, of hours of labor, of height of buildings, of 
municipal distribution of charity, of flooding a cranberry bog, or of prescribing to 
sleeping-car porters’ duties regarding the lowering of upper berths—in questions great 
and small, the courts vote upon the reasonableness of the use of the police power, 
like any old-fashioned town meeting. There is no rule of law involved. There is 
only opinion or prejudice, or pecuniary interest. The judges admit frankly that this 
is so. They avow that they try to weigh public opinion as well as they can and then 
vote. In 1911 Mr. Justice Holmes first explained that the police power extended to 
all great public needs and then went on to observe that this police power, or extraor¬ 
dinary prerogative, might be put forth by legislatures ‘in aid of what is sanctioned by 
usage, or held by . . . preponderant opinion to be . . . necessary to the public wel¬ 
fare.’ ” (Noble State Bank v. Haskell, 219 U. S., 104.) 

A friend of the power of the courts, Mr. W. S. Carpenter, in writing 
“Judicial Tenure in the United States” and discussing the doctrine of 
judicial review was exercised by the court, says: 

“Nevertheless, it is precisely because of his possession of this latter function that 
the demand arises for the political responsibility of the judge. In this capacity the 
judge has come to exercise an important power of determining public policy, and, it is 
insisted, no official whose duties involve the determination of public policy should be 
free from popular control.” [Italics ours.] 

Thus Professor W. F. Dodd, unfriendly to the power, in Michigan 
Law Review, Vol. X, page 85, writes: 

“As has been frequently suggested in recent years, the courts have become prac¬ 
tically legislative organs, with an absolute power of veto over statutory legislation 
which they may regard as inexpedient; and this power has been used most frequently 
with respect to social and industrial legislation enacted to meet new social and eco¬ 
nomic conditions.”. 

In further confirmation of the fact of the exercise by the courts of a 
legislative and, therefore, political power, Professor Haines in “The Amer¬ 
ican Doctrine of Judicial Supremacy” (page 309), says: 

‘The legislative activity of American courts which has resulted from this 
extension of the right of review has now become a commonplace fact of our political 
thought.” 

It is, therefoie, both in an affirmative sense—that of legislating from 
the bench—and in a negative one—that of exercising a sort of veto power 
(in other words, destroying legislation already created by declaring it 


25 


Void), that the Supreme Court exercises a political power. This will 
become still more apparent to us, particularly on the veto side, when as we 
discover instances of its exercise in later cases. 

A conspicuous failure of the Supreme Court in attempting to deter¬ 
mine a political question was in the case of Scott v. Sandford, and the 
storm of criticism following it led, apparently, to care in the exercise of 
the jurisdiction claimed over legislative acts. In fact, until the Legal 
Tender cases, no further attempt was made to declare unconstitutional 
any act of Congress of general application. A striking circumstance is 
that from the organization of the Federal Courts in 1789 to 1888, covering 
the. first one hundred years of the history of the court, but nineteen acts 
according to Mr. Haines’ count, to which properly should be added the 
Missouri Compromise, involved in the Scott case, making twenty in all, 
(though there were some others of minor importance) were declared 
unconstitutional. Upon this point we quote the following table and 
remarks from Haines’ “American Doctrine of Judicial Supremacy” (page 

Acts of Congress Invalidated by Federal Courts from 1789 to 1888 
(based on Table in U. S. Reports 131, Appendix) 


Relating to organization and procedure of courts. 7 

Effect to exercise powers not granted in Constitution. 6 

Interference with state powers. 2 

Ex post facto. 1 

Interfering with rights of citizens. 1 

Unjust penalties. 1 

Denial of trial by jury. 1 


19 

“With the exception of the extraordinary decree issued in the Dred Scott case, 
which is not included in the above table, all of the acts or portions of the acts of 
Congress invalidated by the courts before 1868 related to the organization of courts. 
Denying the power of Congress to make notes legal tender seems to be the first 
departure from this rule.” 

Before speaking, however, of the Legal Tender cases, two matters 
brought before the Supreme Court should receive attention, the first being 
that of Ex parte Milligan (4 Wallace, 2, 18 Law. Ed., 281). This case is 
often referred to with high praise, and justly so, as a vindication of the 
civil power against the military in a jurisdiction where flagrant war was not 
existing. It is much to the credit of the Supreme Court that five of its 
judges concurred in the prevailing opinion, but it is scarcely of com¬ 
mendatory value at this time, the passions of war having subsided, that 
there were four dissenting. The case is often referred to as if it involved 
an exercise of control by the courts over congressional legislation. This 
is a mistake. The prevailing opinion said: 

“This court has judicial knowledge that in Indiana the federal authority was 
always unopposed, and its courts always open to hear criminal accusations and redress 
grievances; and no usage of war could sanction a military trial there for any offense 









26 


# 


whatever of a citizen in civil life, in nowise connected with the military service. Con¬ 
gress cquld grant no such power; and to the honor of our national legislature, be it 
said, it has never been provoked by the state of the country even to attempt its 
exercise. One of the plainest constitutional provisions was, therefore, infringed when 
Milligan was tried by a court not ordained and established by Congress, and not com¬ 
posed of judges appointed during good behavior.” 

It is apparent from this statement that the majority did not under¬ 
stand that it was placing itself in opposition to the will of Congress, and 
that the action against which its mandate was levelled was an unauthorized 
exercise of military jurisdiction in a peaceful territory. As to the exercise 
of such power by the courts, directed against excesses of executive authority, 
which excesses are unsupported by law, we have and can have no complaint 
to make. It is a part of the ordinary unquestioned judicial duty of the 
court. Nevertheless, the Milligan case has been treated by at least one 
Bar Association and by legal writers defending the broad reach of judicial 
power as if the determination of the court was a triumphant answer to 
those who oppose the judicial power of courts to declare acts of Congress 
unconstitutional. 

As a matter of knowledge, important to be had in the full considera¬ 
tion of the question under discussion, we next have to refer to the Mc- 
Cardle case. McCardle had been arrested by the military authorities in 
Mississippi and held for trial before a military commission; this im¬ 
mediately following the war. He applied for the writ of habeas corpus. 
His application failing, he appealed to the Supreme Court. A motion 
was made to dismiss his appeal, but this motion was denied. (6 Wall., 
318.) 

The Supreme Court having thus evinced an intent to take jurisdic¬ 
tion of the case on appeal, Congress hastily passed an act taking away this 
particular branch of appellate jurisdiction from the Supreme Court.' The 
court submitted to the action of Congress on the theory that its appellate 
jurisdiction was constitutionally subject to “such exceptions and under 
such regulations as the Congress shall make,” and refused to entertain 
further jurisdiction of the case, saying, among other things, that: 

It is quite clear, therefore, that this court can not proceed to pronounce judg¬ 
ment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is 
not less, fitly performed by declining ungranted jurisdiction than in exercising firmly 
that which the Constitution and the laws confer.” 

„ T h e question arose and was carried to the Supreme Court of the 
United States shortly after the war whether Congress had a right to make 
the currency authorized by it legal tender for debts. The Supreme Court 
on February 7, 1870, declared that prior to the enactment of the legal 
tender laws of 1862 and 1863 gold was the only legal tender, and all 
promises to pay in contracts prior to the passage of the acts were tacitly 
understood to be cancelled in gold. (Hepburn v. Griswold, 8 Wall., 605 
19 Law. Ed., 518.) 

Shortly following the decision, two vacancies having occurred in the 


27 


court, President Grant appointed judges more favorable to the Legal 
Tender Act. A rehearing was granted and in December, 1870, by a vote 
of 5 to 4, the law of Congress was sustained. 

The case is useful as indicating the vicissitudes to which a congres¬ 
sional act may be exposed in the Supreme Court, and the danger of leaving 
great public and political questions to the control of a judicial body which, 
for a multitude of such reasons as usually and honestly dominate men, 
may throw its power against the interests of the public and to the utter 
confusion of the affairs of government. 

In 1893 the Supreme Court decided the case of Monongahela Naviga¬ 
tion Company v. United States, 148 U. S., 312, 37 Law. Ed., 462. The 
company under state authority had constructed a dam and locks on the 
Monongahela River and charged tolls for their use. In the interest of 
public commerce Congress had directed the purchase, or if need be, con¬ 
demnation of this property without payment for the franchise. The 
Supreme Court held that such taking of the franchise was a taking of pri¬ 
vate property without compensation and the act in this respect unconsti¬ 
tutional. The Supreme Court, in so doing, followed the mischievous prece¬ 
dent of the Dartmouth College case, politically recognizing that when 
private individuals are permitted to exercise a public function the right of 
such exercise is in itself private propterty. 

In the later case of Alvarez v. United States, 216 U. S., 167, 54 Law. 
Ed., 432, the Supreme Court declared invalid the claim that the right to 
exercise a public office was private property, and held that the provisions 
of the treaty with Spain protecting private property “have no reference to 
public or quasi public stations, the functions and duties of which it is the 
province of government to regulate or control for the welfare of the people, 
even where the incumbents of such stations are permitted, while in the 
discharge of their duties, to earn and receive emoluments or fees for serv¬ 
ices rendered by them.” Why, differences should be recognized between 
two acts each of which involve the exercise of a public function, is not 
logically obvious, but the political mischief involved in acknowledging a 
property right in individuals to control public commerce is indefinite. 

We come now to one of the most important political opinions ever 
rendered by the Supreme Court of the United States, political in that it 
determined for nearly twenty years thereafter that, consistently with the 
provisions of the Constitution, Congress could not levy an income tax— 
this despite the repeated experiences of the political benefits and advan¬ 
tages, not to say necessities, met by such a tax, which had been afforded 
for a period of more than one hundred years. 

In other words, the effect of the decision was to shear the government 
of a large part of its power of existence and perpetuity. Had it been made 
thirty years earlier it is probable that our civil conflict would scarcely have 
been brought to a successful termination. Had it been in force since 1917 
the government could hardly have met its recent enormous expenses. 

This case—Pollock v. Farmers Loan & Trust Co. (157 U. S., 429, 39 


28 


Law. Ed., 759)—was first decided by an equally divided court, leaving the 
opinion below in favor of the act to prevail. On the rehearing (158 U. b., 
601, 39 Law. Ed.,' 1108) the court decided against the law, 5 to 4, with 
the effect that, in a suit to which the United States was not a party, and 
in which its representatives were heard only as matter of courtesy, the 
government was deprived of its great power of taxation upon incomes. 

That members of the ultimate majority declaring the act uncon¬ 
stitutional were largely influenced by their political or sociological views 
rather than by any legal conception, is made perfectly manifest from a 
review of the opinion of Justice Field, filed in connection with the first 
decision, he forming part of the court in each instance. He said (157 
U.'S., 596) : 

“The income tax law under consideration is marked by discriminating features 
which affect the whole law. It discriminates between those who receive an income of 
$4,000 and those who do not. It thus vitiates, in my judgment, by this arbitrary dis¬ 
crimination, the whole legislation. . . . Whenever a distinction is made in the 
burdens a law imposes or in the benefits it confers on any citizens by reason of their 
birth, or wealth, or religion, it is class legislation, and leads inevitably to oppression 
and abuses, and to general unrest and disturbance in society.” 

That there was a difference between, for instance, the levy of a 5 per 
cent tax on the income of a man receiving $4,000 a year and upon another 
having an income scarcely large enough to furnish his family with the 
barest necessities of life, never occurred to the distinguished justice. 
That in the one case it might create only an inconvenience and in the other 
case might mark the distinction between sufficient and insufficient sustenta- 
tion, was unknown to him, and this being unknown, in his economic 
ignorance, he jumped to the conclusion that the act of Congress must 
have been unconstitutional. So far did he fail to perceive that a tax, 
theoretically equal, might economically represent the extremes of in¬ 
equality, and so tender was he, as a member of the Supreme Court, of the 
interests of those best able to take care of themselves, that when he 
came to close his opinion, he said: 

“If the provisions of the Constitution can be set aside by an act of Congress, 
where is the course of usurpation to end ? The present assault upon capital is but the 
beginning. It will be but the steppingstone to others, larger and more sweeping, 
until our political contests will become a war of the poor against the rich; a war 
constantly growing in intensity and bitterness. ‘If the court sanctions the power 
of discriminating taxation, and nullifies the uniformity mandate of the Constitution/ 
as said by one who has been all his life a student of our institutions, ‘it will mark 
the hour when the sure decadence of our present government will commence.’ ” 

Despite the terrifying prophecy so feelingly endorsed by the justice, 
an agitation began forthwith for a constitutional amendment which would 
unloose the bands placed upon Congress by the decision of the Supreme 
Court and carry into effect what beyond all question had been the will of 
the people from the beginning, that is to say, just such an income tax law 
as had been so passionately declaimed against. The result was that after 
nearly twenty years of agitation the proposed constitutional amendment 


29 


became a part of the fundamental law of the land and its binding character 
is recognized by our highest court. (Nevertheless, as we shall see by a 
later decision the Supreme Court by a 5 to 4 vote has limited the power 
of Congress even under the amendment and against what we may believe 
to have been the popular wish in adopting it.) 

Again, as in the Dred Scott case, as in the first decision of the legal 
tender cases, the Supreme Court in 1893 and as we shall see in 1920 has 
notably failed through its action in constitutional questions to conserve the 
highest interests of government. 

Detailed discussion of recent cases in the Supreme Court involving 
determination of political or social questions must be omitted, but as of 
high importance we refer to the case of Eisner v. Macomber, 252 U. S. 
189 ; 64 Law. Ed., 521 (1920). This decision put stock dividends beyond 
the reach of the Federal Income Tax law. By this five to four decision 
an immense body of wealth—formed from the aggregate of past incomes— 
was exempt from taxation. The vast body of the workers of America 
must agree with Mr. Justice Holmes in his dissent when he said: 

“The known purpose of this (Income Tax) Amendment was to get rid of nice 
questions as to what might be direct taxes, and I cannot doubt that most people not 
lawyers would suppose when they voted for it that they put a question like the 
present to rest.” 

Following shortly after the case just cited came the case of Evans v. 
Gore, 253 U. S. 245, declaring Federal judges exempt from income taxes 
troubling others, upon the argument that such taxes unconstitutionally 
diminished their compensation during continuance in office. The doubtful 
character of this contention is shown by the fact that Justices Holmes 
and Brandeis dissented. 

Another recent political case is that of Newberry v. U. S. 256, 232; 
65 Law. Ed., 913. From this we discover that Congress has no authority 
over primaries nominating United States Senators. Four justices again 
differed with the five constituting a majority. Essential corruption in the 
most important step in a senatorial election next to the actual casting of 
the ballot becomes of no national importance by the closest possible 
majority in the decision. 

Other cases referring to social questions decided in the same period 
(since my first Report) are discussed later. 

OTHER SUPREME COURT DECISIONS OF CONSTITU¬ 
TIONAL INTEREST 

Among the cases in which the Supreme Court has declared acts of 
Congress unconstitutional we refer to that of Callan v. Wilson (127 
U. S., 540), wherein the Supreme Court declared unconstitutional an act 
of Congress failing to provide for a jury in the Police Court of the 
District of Columbia when important criminal cases were under trial. 

The next case was that of Wong Wing et al. v. U. S. (163 U. S., 


30 


228, 41 Law. Ed., 140), the syllabus stating that mipnsonment of Chinese 
persons at hard labor under the Act of Congress of May 5, 1892 ordered 
by judgment of a Commissioner without trial by jury, is in violation o 
the constitutional provisions as to presentment or indictment o , a gran 
jury in case of an infamous crime and as to due process of law. 

In Kirby v. United States, 174 U. S., 47, 43 Law. Ed., 890, the 
Supreme Court declared that a provision of an act of Congress to the 
effect that judgment of conviction against the principal felon should be 
evidence in the prosecution against the receiver that the propeity ot the 
United States alleged tc/have been embezzled, etc., had been so embezzled, 
etc., was in violation of the clause of the Constitution requiring that in 
criminal prosecutions the accused shall be confronted with the witnesses 

against him. . . 

Several cases, differing in order of time, but associated in general 

character, may be referred to together. , • x . 

Fairbank v. United States (181 U. S., 283, 45 Law. Ed., 862), simply 
invalidated the Federal Stamp Acts on foreign bills ‘of lading; United 
States v. Hvoslef (237 U. S., 1, 59 Law. Ed., 813), invalidated Federal 
Stamp Acts on foreign charter parties; Thames & Mersey Marine-Ins. 
Co. v. United States (237 U. S., 19, 59 Law. Ed., 821), invalidated stamp 


taxes on policies of marine insurance. . 

As a result of many years agitation Congress, in 1906, passed the 
Federal Employers’ Liability Act, and the following year the question 
of its constitutionality was before the Supreme Court of the United States 
(Howard v. Ill. Central R. R. Co., 207 U. S., 463; 52 Law. Ed., 297), that 
court, by a division of five to four, declaring the act in its more important 
phases, to be unconstitutional, the majority, however, reaching this result 
by different lines of reasoning. Justice White and Justice Day concurred 
in the principal opinion and Chief Justice Fuller and Justices Peckham 
and Brewer in the result. 

It would be beyond the purpose of this opinion to examine the views 
of the justices at any length. We do point out, however, that the subject- 
matter of interstate commerce is one over which Congress had jurisdic¬ 
tion, and according to the rules stated by the Supreme Court, every intend¬ 
ment should have been indulged in to support the act. Had such a course 
been taken there would have been no difficulty in sustaining it. 

It is interesting to note that Justice Moody in his dissent to what he 
considered to be a judicial condemnation of an act of a great coordinate 
branch of the government, declared hims’elf solicitous to maintain what 
seemed to him the lawful powers of the nation. He said that: 


“The court has never exercised the mighty power of declaring the acts of a 
coordinate branch of the government void except when there is no possible and sensible 
construction of the act which is consistent with the fundamental organic law. The 
presumption that other branches of the government will restrain themselves within 
the scope of their authority, and the respect which is due to them and their acts, ad¬ 
mits of no other attitude from this court. This is more than a canon of interpretation; 
it is a rule of conduct resting upon considerations of pul lie policy, and in the exer- 


31 


cise of the delicate functions of condemning the acts of coordinate and equal branches 
of the government, under the same obligation to respect the Constitution as ourselves, 
has been observed from the beginning.” 

Shortly after the announcement of this opinion Congress reenacted 
the law in such changed form that the Supreme Court when next called 
upon to express an opinion on the general subject-matter sustained the act. 

In the interval between the two acts there were hundreds if not 
thousands of men killed or maimed, and they or their families left without 
remedy, through the doubtful exercise of what the Supreme Court has 
declared to be its power. 

We come now to the very important case of Adair v. U. S. (208 
U. S., 161, 52 Law. Ed., 436). Congress, by act of June 1, 1898 (30 
Stat. at L., 424), had made it a criminal offense against the United States 
for an officer or agent of an interstate carrier, having full authority in the 
premises from his principal, to discharge an employee from service of such 
carrier because of his membership in a labor organization. Adair, as the 
agent and employee of the Louisville & Nashville Railroad Company, was 
charged with having discharged contrary to the statute, one O. P. Cop- 
page, because of his membership in the Order of Locomotive Firemen. 
The court held the act of Congress unconstitutional as being an invasion 
of personal liberty and of the right of property guaranteed by the Fifth 
Amendment of the Constitution, these rights embracing the right to make 
contracts for the purchase of the labor of others and equally the right 
to make contracts for the sale of one’s own labor, each right, however, 
being subject to the fundamental condition that no contract, whatever 
its subject-matter, can be sustained which the law, upon reasonable grounds, 
forbids as inconsistent with the public interests or as hurtful to the 
public order, or as detrimental to the common good. The majority of 
the court cited, with apparent approval, the case of Lochner v. New 
York (198 U. S., 45; 49 Law. Ed., 937), of which we shall have more 
to say hereafter, the purpose of this citation being to indicate that the 
question before the court was whether the act involved a fair, reasonable 
and appropriate exercise of the police power of the state, or whether it • 
was an unreasonable, unnecessary and arbitrary interference with the 
right of the individual, and with his personal property, in preventing him 
from entering into such contracts in relation to labor as might, to him, 
seem appropriate or necessary^. 

That the court in the decision of this case was acting in a political 
capacity, that is to say, legislating according to its own ideas of the func¬ 
tions of government, was made manifest by the following language used 
on page 174 of the decision: 

“It is not within the function of government—at least in the absence of contracts 
between the parties—to compel any person in the course of his business, against his 
will, to accept or retain the personal services of another, or to compel any person 
against his will to perform personal services for another.” 

It was held within the legal right of the defendant to discharge 
Coppage because of his being a member of the labor organization as it was 




r 


32 

within Coppage’s legal right to quit the service because the principal 
employed some persons who were not members of a labor organization. 

It was further suggested that there was no such connection between 
interstate commerce and membership in a labor organization as to authorize 
Congress to make it a crime against the United States for an agent of an 
interstate carrier to discharge an employee because of such membership. 

From this decision Justice McKenna emphatically dissented, finding 
upon a consideration of the entire act that it presented “a well coordi¬ 
nated plan for the settlement of disputes between carriers and their 
employees, by bringing the disputes to arbitration and accommodation, and 
thereby prevent strikes and the public disorder and derangement of 
business that may be consequent upon them.” He submitted that no 
worthier purpose could engage legislative attention and argued that if 
labor associations are to be commended Congress should* be able . to 
recognize their existence. “Liberty,” he remarked, “is an attractive 
theme, but the liberty which is exercised in sheer antipathy does not plead 
strongly for recognition.” 

justice Holmes, in the course of a special dissent filed by him, said: 

“I also think that the statute is constitutional, and, but for the decision of my 
brethren, I should have felt pretty clear about it. . . . The section simply prohibits 
the more powerful party to exact certain undertakings, or to threaten dismissal or 
unjustly discriminate on certain grounds against those already employed. ... I 
confess that I think that the right to make contracts at will that has been derived 
from the word ‘Liberty’ in the amendments has been stretched to its extreme by the 
decisions; but they agree that sometimes the right may be restrained. When there 
is, or generally is believed to be, an important ground of public policy for restraint, 
the Constitution does not forbid it, whether this court agrees or disagrees with the 
policy pursued. It can not be doubted that to prevent strikes, and, so far as possible, 
to foster its scheme of arbitration, might be deemed by Congress an important point 
of policy, and I think it impossible to say that Congress might not reasonably think 
that the provision in question would help a good deal to carry its policy along.” 

I shall depart, for the moment, from the plan of this paper, which 
properly involves at this point a discussion alone of decisions of the 
Supreme Court declaring acts of Congress void, to consider the case of 
Coppage v. Kansas (234 U. S., 1; 59 Law. Ed., 441). Kansas had made 
it a crime for an employer or his agent to prescribe as a condition under 
which one might secure employment under or remain in the service of 
such employer (the employment being terminable at will) that the em¬ 
ployee should enter into an agreement not to become or remain a member 
of any labor organization while so employed. The Supreme Court de¬ 
clared such act to be unconstitutional and void. The Kansas trial court 
had convicted the defendant, and the Supreme Court of Kansas had 
affirmed such conviction. 

It will be noted that there is a great similarity between this and the 
Adair case just discussed. A majority of the Supreme Court considered 
that the statute interfered with the free right of the parties to contract 
and that it interfered with their equality of right and could not be sus¬ 
tained as a reasonable exercise of the police power of the state. 

* 


\ 


33 


It was admitted that the Supreme Court of Kansas had pointed out 
as a matter of common knowledge that “employees as a rule are not 
financially able to be as independent in making contracts for the sale of 
their labor as the employers in making contracts of purchase thereof,” 
but this the majority thought was one of the inequalities of fortune 
which will be wherever the right of private property exists. The court 
said: 

“And, since it is self-evident that, unless all things are held in common, some 
persons must have more property than others, it is from the nature of things impos¬ 
sible to uphold freedom of contract and the right of private property without at the 
same time recognizing as legitimate those inequalities of fortune that are the neces¬ 
sary result of those rights.” 

This reads as if, in the opinion of the court, the inequalities against 
which so many protest, depended upon freedom of contract as the Supreme 
Court interpreted it, and the right of private property. In the minds, 
therefore, of the court, it seems to result that it was more important to 
maintain extreme notions as to private property than to permit the legis¬ 
latures to take any step the effect of which might be to do away with any 
inequalities of fortune. 

Whatever may be thought of the court’s logic it is at any rate apparent 
that political considerations largely governed the tribunal in reaching its 
conclusions. 

It was urged in the brief of counsel for the state that membership in 
a labor organization was the “personal and private affair of the employee.” 
The majority of the Supreme Court said: 

“To this line of argument is is sufficient to say that it can not be judicially 
declared that membership in such an organization has no relation to a member’s duty 
to his employer; and therefore if freedom of contract is to be preserved, the employer 
must be left at liberty to decide for himself whether such membership by his em¬ 
ployee is consistent with the satisfactory performance of the duties of the employment.” 

It seems never to have occurred to the honorable court in the making 
of this decision to consider that the man who was discharged, one Hedges, 
was at the time a member of the Switchmen’s Union and entitled to all 
benefits, whether by way of insurance or otherwise, that pertain to such 
membership, and that the notice served upon him was that he should sur¬ 
render his contract rights or be discharged. Nevertheless, the employer, 
alleged to be the person offended against, the supposed contract right to 
merely employ another was held infringed upon by the defendants in the 
later case of Hitchman Coal & Coke Co. v. Mitchell (245 U. S., 229; 62 
Lav/. Ed., 1244). 

Justice Holmes dissented from the decision in Coppage v. Kansas, and 
in the course of his dissent said: 

“Whether in the long run it is wise for the workingman to enact legislation 
of this sort is not my concern, but I am strongly of opinion that there is nothing in 
the Constitution of the United States to prevent it.” 

313A—2 


34 


Justice Day, who also dissented, said: 

“This statute, passed in the exercise of that particular authority called the 
police power, the limitations of which no court has yet undertaken precisely to de¬ 
fine, has for its avowed purpose the protection of the exercise of a legal right, from 
preventing an employer from depriving the employee of it as a condition of obtain¬ 
ing employment. I see no reason why a state may not if it chooses protect this right 
as well as other legal rights.” 

In the case of Loewe v. Lawlor (208 U. S., 274; 52 Law. Ed., 488), 
the defendants were made liable for triple damages for doing no more— 
perhaps not so much, so far as its effect upon the livelihood of the plaintiffs 
was concerned—than was done by Coppage. But his act, interfering with 
the contract between Hedges and the Switchmen’s Union, could not be 
pronounced criminal by the state legislature and the legislature was held 
to have interfered with his civil rights, while the more innocent acts of 
the defendants in Loewe v. Lawlor were held subject to civil procedure 
with heavy penalties under the decision of the Supreme Court. 

In the case of Muskrat v. United States (219 U. S., 348; 55 Law. 
Ed., 247), the act of Congress undertaking to refer to the c^urt a question 
for determination which was not brought before it in a case or contro¬ 
versy, was held to confer a nonjudicial duty and therefore void. This was 
of course in line with some of the earlier holdings of the minor courts of 
the United States and found a particular precedent in the Ferreira case 
heretofore referred to. 

Another case within the scope of our review in which the Supreme 
Court of the United States has declared void an act of Congress is that 
of Hammer v. Dagenhart (247 U. S., 251 ; 62 Law. Ed., 1101 ). 

For years the public mind had been educated to the existence of 
abuses of child labor committed in the interests of great capital in the 
cotton mills of the country. It was felt that the future life of America 
was being destroyed to facilitate the production of dollars. The result 
was the passage of an act by Congress dated September 1 , 1916, pro¬ 
hibiting transportation in interstate commerce of manufactured goods, the 
product of a factory in which during thirty days prior to the removal of 
the goods children under 14 had been employed, or children between 14 
and 16 had been employed more than eight hours in a day or more than 
six days in a week, or between seven in the evening and six in the morning. 

A bill was filed in the District Court of the United States for the 
Western District of North Carolina by a father in his own behalf and as 
next friend (one would rather say enemy) of his minor sons, one under 
the age of 14 years and one between 14 and 16 years, employees in a North 
Carolina cotton mill, to enjoin the enforcement of this act. And this 
father, so anxious that his children should be permitted to work the hours 
of labor objectionable to the terms of the act, for the pitiful sum he might 
receive for them, appeared, as we find, in the Supreme Court by leading 
and expensive attorneys from New York City. 

The Supreme Court considered that to sustain this statute would not 


35 


be “a recognition of the lawful exertion of congressional authority over 
interstate commerce, but would sanction an invasion by the Federal power 
of the control of a matter purely local in its character, and. over which no 
authority has been delegated to Congress in conferring the power to regu¬ 
late commerce among the states.” 

The court which would sustain the Mann act concerning interstate 
transportation of immoral women found no evidence of congressional 
power to control the even graver immorality of injuries to childhood. 

Four judges dissented, Justices Holmes, Brandeis, McKenna and 
Clarke. In the course of his dissent Justice Holmes argued that it was 
entirely within the power of Congress, as the statute undertook to do, to 
prohibit the carriage of certain goods in interstate or foreign commerce; 
and “it is not made any less constitutional because of the indirect effects 
that it may have, however obvious it may be that it will have those effects 
and that “we are not at liberty upon such ground to hold it void.” 

Pertinently he remarked: “It is not for the court to pronounce when 
prohibition is necessary to regulation if it ever may be necessary—to say 
that it is permissible as against strong drink, but not as against the product 
of ruined lives.” 

Since the first Report several cases of social import (scarcely to be 
distinguished from those preeminently political) have been passed upon by 
the Supreme Court adversely to the powers of Congress. The first was 
Knickerbocker Ice Co. v. Stewart. Congress was told by a vote of five to 
four that it had no power to legislate so as to permit the application of 
Workmen’s Compensation Laws of the States to injuries within admiralty 
and maritime jurisdiction. If one judge in the majority had changed his 
mind the intelligence and wisdom of Congress would have been justified. 

We next come to the case of Bailey v. Drexel Furniture Co., 259 
U. S. 20; 66 Law. Ed., 817, wherein by a vote of eight to one, it was held 
that the Child Labor Tax law was unconstitutional, being the use of a tax 
as a penalty upon the employment of child labor. Thus it appears in con¬ 
nection with the Hammer v. Dagenhart, that neither directly nor indirectly 
may Congress protect children against abuse of their labor. 

The third and last purely social case decided by the Supreme Court 
since the first Report is that of Adkins et al., Minimum Wage Board of 
D. C. v. Children’s Hospital, April 9, 1923. Adv. Op. Oct. Term, 1922, 
p. 440. By this decision the constitutional right of women and children 
to work long hours at small wages is vindicated against congressional 
legislation. So doubtful, however, was the Court upon the subject that we 
find a decision of five to three, Mr. Justice Brandeis for personal reasons 
taking no part. Had he voted we may well believe that the result would 
have been another five to four decision. 


36 


) 






SUMMARY AS TO SUPREME COURT CASES DECLARING 
ACTS OF CONGRESS UNCONSTITUTIONAL 

There have been reviewed, with necessary brevity, the decisions of the 
Supreme Court of the United States declaring Federal statutes uncon¬ 
stitutional, and we may now take a moment to sum up these decisions. 

The preliminary question was whether the Supreme Court had the 
power in this respect which it has exercised. We have seen that his¬ 
torically this was doubtful. We have also found that the power has been 
actually exercised for 120 years without any emphatic dissent from Con¬ 
gress. We are therefore led to believe that whether rightfully or wrong¬ 
fully exercised in the first instance, the power is now too deeply ingrained 
in our national institutions to permit its existence to be denied. 

The question remains whether the results of the exercise of this power 
have been such as to justify its existence; whether they have been good or 
bad, or consistently and certainly used, and in short, whether or not the 
interests of the people would be subserved by allowing the Supreme Court 
to continue in the course it has chosen. In other words, judging the tree 
by its fruits, shall it be pruned or cut out by the roots? The final answer 
to the latter question we will for the present reserve, discussing the nature 
of the fruits. 

We have found that at least seven of the decisions of the Supreme 
Court rendered prior to 1889 had reference to powers which Congress 
had undertaken to give or deny, in some shape or other, to the courts, 
thereby setting in some degree bounds either of extension or limitation to 
their judicial activities. With decisions declaring void acts of Congress of 
this nature there can, from any standpoint, be little quarrel, as we have 
shown in the discussion of the Marbury case. When, however, we pass 
from these decisions, covering numerically so large a part of the activities 
of the Supreme Court with reference to Congress, we discover, with 
immaterial exceptions which will be noted, an almost uninterrupted series 
of failures, an almost invariable course of mischief, pursued by the'Su¬ 
preme Court in its interferences with congressional legislation. 

It will not be disputed at this day that the Supreme Court in the 
Dred Scott case embittered the relations between North and South and 
helped to precipitate the greatest catastrophe the country has ever known. 
This it did through the exercise of a power the political nature of which 
can not be disputed. 

As another notable and mischievous instance of interference in political 
matters under the guise of preventing impairment of contracts and pre¬ 
venting the taking away of property without due process of law, we have 
the first decision in the legal tender cases; a decision which coming at 
certain junctures, might well have paralyzed the government, at least 
temporarily; and which was of such nature as to justify the strong-arm 
procedure by which reversal was secured—the packing of the Supreme 




Court with new judges whose sentiments upon validity of the law were 
well understood in advance. 

A dangerous decision, sanctifying franchises granted by a state as 
private property, was that of Monongahela Navigation Co. v. U. S., 148 
U. S., 312 , 37 Law. Ed., 463 , rendered in 1893 . 

We next reach, as a notable political performance, the income tax 
decision of 1893 . We find that after wabbling which would not have 
been creditable to the authorities of the humblest village in the land, the 
Supreme Court, five to four, declared an act of Congress touching intimately 
the revenues of the country to be ultra vires. As a result of this decision, 
for nearly twenty years the poorest citizens of the country were compelled 
to meet the expenses of government in an unnecessary and exasperating 
proportion, and the great fortunes escaped payment proportionate to ability 
to pay or to the special privileges enjoyed by their possessors. The Su¬ 
preme Court in this decision created a strong line of cleavage between the 
government and the people. The fact that after many years the people 
were able to correct the political errors of the court by changing their 
Constitution does not extenuate the fact that until such change was made 
the less fortunate elements of our community were relatively sufferers at 
the hands of the judiciary through the exercise of this assumed power. 

We have sufficiently reviewed the Adair case, the Wong Wing case, 
and the Howard case. While the Wong Wing case was decided in favor 
of individual rights, the same can scarcely be said of the other two. The 
result of the Adair case was to persuade many members of trade organiza¬ 
tions that legislation presumed to be in their favor would not receive the 
degree of approval that was accorded by the Supreme Court to legislation 
which was contra—vide the case of Loewe v. Lawlor. The effect of the 
Howard case, relating to the Federal Employers’ Liability law, was to 
leave a constantly increasing body of sufferers from the dangers of indus¬ 
trial life without adequate relief for an appreciable period of time, or to 
defeat their claims altogether. 

As another notable step in this history, we come to the Hammer case 
involving a declaration by the Supreme Court of the limitation of power of 
Congress over interstate commerce, a limitation so complete that congres¬ 
sional legislation, attempted for the purpose, as may fairly be said, of 
ending the destruction of infantile life in the cotton mills, met with failure. 
Because of this action of the Supreme Court there is no doubt that hun¬ 
dreds of children have been sentenced to death and thousands will grow 
up enfeebled and inferior men and women. 

* The language just used may seem strong, but it is weak in comparison 
with what was written by the English author, Mr. H. G. Wells, fourteen 
years ago in his work, “The Future of America.” He said : 

“Just think of it! The richest, greatest country the world has ever seen, has 
over 1,700,000 children under fifteen years of age toiling in fields, factories, mines, 
and workshops. ... In the worst days of cotton milling in England the condi¬ 
tions were hardly worse than those now existing in the south. Children, the tiniest 




38 

and frailest, . . . rise in the morning and, like old men and women, go to the 
mills to do their day’s labor; and when they return home wearily fling themselves 
on their beds, too tired to take off their clothes.’ Many children work all night. . . . 
‘in the maddening racket of the machinery, in an atmosphere insanitary and clouded 
with humidity and dirt.” 

We shall refer elsewhere to decisions involving political questions 
such as the Eisner v. Macomber, Evans v. Gore, Newberry y. U. S., and 
social questions such as Knickerbocker Ice Co. v. Stewart, Bailey v. Drexel, 
Adkins v. Children’s Hospital, none of which would be said to advance 
political or social progress, and all of doubtful soundness as shown by 
strong and persistent dissents. 

Upon the other side of the question what have been the results, 
favorable to the community, achieved through the voiding by the Supreme 
Court of the acts of Congress? (We have mentioned a line of decisions 
touching on jurisdiction of courts with which we have no quarrel.) 

The Supreme Court has decided that an oath (ex parte Garland, 4 
Wall., 333) to be administered to attorneys and counsellors in courts of 
the United States was ex post facto. It also declared (State v. DeWitt, 
9 Wall., 11) that an offense described in an act of Congress when com¬ 
mitted within a state was beyond the power of control by Congress. 

It has said (Collector v. Day, 11 Wall., 113) that a tax upon the 
salary of a judicial officer of a state was unconstitutional; likewise in the 
case of Evans, v. Gore, 253 U. S., 245 U. S. judicial salaries have been 
excluded from the Federal Income Tax; it has ruled (United States v. 
Klein, 13 Wall., 128) that a provision respecting pardons in an appropria¬ 
tion act was ex post facto, and that (United States v. Railroad Company, 17 
Wall., 322) an act taxing interest paid by railroads on their bonds was 
unconstitutional in so far as affecting municipal corporations. It has 
ruled (United States v. Reese, 92 U. S., 214) that certain provisions of 
an act enforcing the rights of citizens of the United States to vote were 
beyond the limits of the 15th Amendment to the Constitution, and in 
United States v. Fox (97 U. S., 670), a certain offense committed in 
bankruptcy was only the subject of state legislation. It has held that an 
act of Congress relating to trade-marks was void (Trade-mark cases, 100 
U. S., 82) as applying to commerce not placed under congressional control; 
that (Kilbourn v. Thompson, 103 U. S., 168 ) inquiries indulged in by 
the House of Representatives as to judicial matters implied no power to 
compel a witness to testify. It has decided (United States v. Harris, 106 
U. S., 629) that a provision of the Revised Statutes relating to conspiracies 
to deprive persons of the equal protection of the laws was too broad. It 
has held (Civil Rights cases, 109 U. S., 3) that certain sections of an act 
protecting citizens in their civil and legal rights were not authorized— 
that such sections were not entitled to the interpretation given them. It 
has declared (Boyd v. United States, 116 U. S., 616) that an act of Con¬ 
gress applying to suits for penalties or to establish a forfeiture was uncon¬ 
stitutional. It has said (Callan v. Wilson, 127 U. S., 540) that in the Dis- 


39 


trict of Columbia in grave offenses a man was entitled to a trial by jury, 
and the congressional act failing to provide it was unconstitutional. 

Of late, and in essence in line with the fundamental idea to which 
Marbury v. Madison might well have been limited, the Court has refused 
to assume non-judicial functions undertaken to be given it by Congress. 
(Public Utilities Commission v. P. El. P. Co., Adv. Op. Oct. Term, 1922, 
p. 512.) In U. S. v. Moreland, 258 U. S., 433‘; 66 Law. Ed., 700, it was 
held that a statute permitting infliction of hard labor as a penalty without 
the prior action of a grand jury was unconstitutional. In Hill v. Wallace, 
259 U. S., 44; 66 Law Ed., 822, the Futures Trading Act was held uncon¬ 
stitutional as touching the sphere of state action. In U. S. v. Cohen, 255 
U. S. 81; 65 Law. Ed., 516, a provision of the Lever Act was held uncon¬ 
stitutional by seven judges, the two remaining not thinking any constitu¬ 
tional question was involved. Perhaps they were right—perhaps they were 
as ignorant as Congressmen. 

We might regard the power we are discussing with more favor if 
the Supreme Court had been solicitous to maintain the rights of the 
individual as against the action of Congress, but such has not always 
been the case. 

In the case of Robertson v. Baldwin (165 U. S., 275; 41 Law. Ed., 
715) a sailor was held to prison on a charge of breaking his contract of 
service, although he had left his ship when in an American port and 
because of conditions surrounding his employment. On the authority of 
maritime laws conceived in the darkness of the Middle Ages, the Supreme 
Court, with one member absent and one member (Justice Harlan) 
strongly dissenting, held that such a law of Congress did not create a 
holding to involuntary servitude. The law enacted by Congress, for the 
most part dated from 1790, long before the adoption of the 13th Amend¬ 
ment, and its continuance in force and effect, so far as Congress was 
concerned, was largely to have been considered an inadvertence, but not 
so the action of the Supreme Court. With the quite common inertia of 
legislative bodies, nearly twenty years had to elapse, however, before 
the situation was corrected by Congress through a proper legislative 
interpretation of the 13th Amendment, and a seamen’s act was passed 
abolishing the system which had been consecrated by the Supreme Court. 

Whatever one may think of the personal qualities of Moyer, Hayward 
and Pettibone, it is difficult to regard their forcible removal from Colorado 
to Idaho as anything but kidnapping, yet the Supreme Court, with but 
one dissent (Pettibone v. Nichols, 203 U. S., 192; 51 Law. Ed., 148; 
Moyer v. Nichols, 203 U. S., 522; 51 Law. Ed., 160) held that no con¬ 
stitutional right had been infringed by this executive action. 

It is fair to say that in Toledo Newspaper Co. v. U. S., 247 U. S., 402, 
62 Law. Ed., 1186, the court apparently considered preservation of the 
dignity of the judiciary more important than preservation of the right of 
free speech and sustained judgment in criminal contempt rendered by the 
judge offended against, a situation hardly to be reconciled with abstract 


40 


justice, though sanctified by precedent. As we show elsewhere it has 
sustained a law of Congress permitting postal censorship as against news¬ 
papers. 

When we consider carefully, therefore, the cases in which the Supreme 
Court has overruled Congress, we are brought to the conclusion that as a 
protection to the individual the jurisdiction has been almost a failure. As 
a political institution it has been frightfully dangerous. As a method of 
social review it has been destructive of human life. We may thus con¬ 
clude that no adequate reason exists for its continuance. 

CONTROL BY THE SUPREME COURT OVER STATE 

LEGISLATION 

We must now discuss the branch of the jurisdiction of the Supreme 
Court which, from a constitutional point of view, is most frequently 
called into play. On rarer occasions, as we have noticed, although often 
important ones, has the Supreme Court declared acts of Congress to be 
unconstitutional. The opposite is true with regard to the states. 

In this instance there is no reason for examining the early history 
of the power. We may content ourselves with saying that the Consti¬ 
tutional Convention discussed the control which ought to be exercised 
by the federal government over the laws of states, and deemed it inexpe¬ 
dient that Congress should exercise such power. There was, therefore, 
inserted in the Constitution the second paragraph of Article VI, reading 
as follows: 

“This Constitution, and the laws of the United States which shall be made in 
pursuance thereof; and all treaties made, or which shall be made, under the authority 
of the United States, shall be the supreme law of the land; and the judges in every 
state shall be bound thereby, anything in the Constitution or laws of any state to the 
contrary notwithstanding.” 

The duty, therefore, of all judges in the execution of their duties, to 
be bound by tfye provisions of the Constitution, laws and treaties of the 
United States and to measure the legislation of the states thereby, was 
made perfectly clear. 

We may digress, for a moment, if indeed it may be called a digression, 
to say that when the writers upon the American Constitution have ex¬ 
pressed their admiration for the workings of the system of judicial control 
over legislative acts, they have really had in mind, not the exercise of this 
power over acts of Congress, but its exercise by the Supreme Court over 
states. They have as a rule failed to differentiate between the two 
systems of control and have treated silently, almost, the fact that one 
was an inferred and the other an expressed power. The necessity for 
the existence of the power as far as state legislation is concerned, is very 
well stated in Bryce’s American Commonwealth, chapter 23, as follows: 

“To have foreseen that the power of interpreting the Federal Constitution and 
statutes, and of determining whether or not state constitutions and statutes transgress 
Federal provisions, would be sufficient to prevent struggles between the National Gov- 


41 


ernment and the state governments, required great insight and great faith in the 
soundness and power of a principle. While the Constitution was being framed the 
suggestion was made and for a time seemed likely to be adopted, that a veto on the 
acts of state legislatures should be conferred upon the Federal Congress. Discussion 
revealed the objections to such a plan. Its introduction would have offended the sen¬ 
timent of the states, always jealous of their autonomy; its exercise would have pro¬ 
voked collisions with them. The disallowance of a state constitution would have to 
be a political move to be resented by a political counter-move. And the veto would 
often have been pronounced before it could have been ascertained exactly how the 
state statute would work, sometimes, perhaps, pronounced in cases where the statute 
was neither pernicious in itself nor opposed to the Federal Constitution. But by the 
action of the courts the self-love of the states is not wounded, and the decision annul¬ 
ling their laws is nothing but a tribute to the superior authority of that supreme enact¬ 
ment to which they were themselves parties, and which they may themselves desire 
to see enforced against another state on some not remote occasion.” 

We shall, in such brief review as it is possible now to make, endeavor 
to show that in the exercise of this power the Supreme Court has largely 
performed, from a national point of view, an absolutely essential duty; 
that without some provisions for its appropriate exercise, whether the 
power be political or not, the union would have been endangered from its 
very beginning; that this is demonstrated by the usual subjects of litiga¬ 
tion coming up from the states to the Supreme Court, including more 
particularly those of interstate commerce and of purely personal rights 
under the 14th Amendment. We believe it will also appear that, however 
beneficial certain exercises of its power may be, nevertheless the Supreme 
Court directly within the past twenty or thirty years has given such 
an extension to the interpretation of the 14th Amendment relative to 
due process of law that it is forcing itself into an impasse from which it , 
will find difficulty in withdrawing, and thatiin so doing it has departed 
from some of its early interpretations, much to the injury of the people 
and of its own high reputation. 

To review even an appreciable percentage of the entire number of 
cases in which the Supreme Court has declared acts of state legislatures 
to be unconstitutional would be beyond the scope of this work, but a 
few may be given passing reference. 

The first case of real importance of this description was that of 
Fletcher v. Peck (6 Cranch, 87), in which the Supreme Court declared 
that the legislature of Georgia had no power to set aside a private grant 
of land made by a preceding body, such conduct on its part impairing the 
obligation of a contract of the state. At the same time the Supreme Court 
itself refused, largely from motives of convenience and desire to avoid 
a clash with another branch of the government, to declare the act of the 
first legislature void, because of bribery and fraud, considering that it 
had no power to enter into the motives influencing the legislature. 

The argument against taking jurisdiction was of course strong, but 
the denial of the right of the legislature to review the fraudulent acts of 
its predecessors in any way, even at the expense of reimbursing innocent 
holders, consecrated the idea that successful fraud committed by those 


42 


temporarily in the legislature was sanctified beyond attack legislatively 
or judicially. We have, however, discussed this case as far as necessary 

in another connection. . . u 

The next case of large importance setting aside an action ot tne 

legislature as an interference with the contract of a preceding body was 
that of Dartmouth College v. Woodward (4 Wheaton, 51b), in 1819. This 
case is too well known and has been too much discussed for large con¬ 
sideration here. In brief, it enforces the doctrine that a legislative act 
conferring powers, once acted upon, is beyond the reach of a subsequent 
body. Some of the objections to the force of this decision have been re¬ 
moved by state constitutions and reservations in special acts of the legis¬ 
lature, but to this day it returns to be cited to limit and control the 
action of the taxing powers of the several states. Hereinbefore it has been 
pointed out that through its authority one legislature has been permitted 
to bind up the action of subsequent like bodies for the benefit of private 
individuals through all eternity, and, coupled with the doctrine of Fletcher 
v. Peck, the people have been without remedy against many politically 
evil conditions. 

We may turn with pleasure for a moment to refer to the case of 
Gibbons v. Ogden (9 Wheaton, 1) decided in 1824. By virtue of this 
case acts of the New York legislature conferring upon Livingston and 
Fulton monopolistic right to use vessels propelled by steam on the waters 
within the State of New York, were declared void as regulations of inter¬ 
state commerce. This case laid the foundation for a long procession of 
decisions coming down to the present time, and by virtue of it and its suc¬ 
cessors control over interstate and foreign commerce has been firmly held in 
the hands of the national government. But for it and following decisions 
our internal commerce might have been as thoroughly bound up through 
interferences and restrictions and with oppressive and deadly monopolies as 
was the internal commerce of France prior to the Revolution. 

Passing over a long line of cases, generally of less fundamental im¬ 
portance than those of which we have spoken, we come to Munn v. 
Illinois (4 Otto, 113; 34 Law. Ed., 77). 

The Illinois legislature had fixed by law the maximum of charges 
for the storage of grain in warehouses at Chicago, and the question arose 
as to whether this law was repugnant to that part of the Constitution 
which conferred upon Congress the power to regulate commerce with 
foreign nations and among the several states, or to the constitutional 
proviso against preference in the regulation of commerce of the ports 
of one state over those of another, or to the 14th Amendment, in that it 
was claimed it deprived the defendant of property without due process 
of law. 

After stating that every statute was presumed to be constitutional 
and ought not to be declared otherwise, unless clearly so, the court pro¬ 
ceeded to discuss the various lines of business which were so far coupled 


43 


with public interests that property employed in them had ceased to be 
private property only. The court remarked that when— 

“one devotes his property to a use in which the public has an interest, he, in effect, 
grants to the public an interest in that use, and must submit to be controlled by the 
public for the common good.” 

The court considered that it was— 

“difficult to see why if the common carrier, or the miller, or the ferryman, or the inn¬ 
keeper, or the wharfinger, or the baker, or the cartman, or the hackney-coachman, 
pursues a public employment and exercises ‘a sort of public office’ these plaintiffs in 
error do not. . . . The same principle applies to them that does to the proprietor 
of the hackney carriage, and as to him it has never been supposed that he was exempt 
from regulating statutes or ordinances because he had purchased his horse and carriage 
and established his business before the statute or the ordinance was adopted.” 

The court then discusses the doctrine that the owner of property is 
entitled to a reasonable compensation for its use even though clothed 
with a public interest and that what is reasonable is a judicial and not a 
legislative question. The court remarked: 

“Undoubtedly, in mere private contracts, relating to matters in which the public 
has no interest, what is reasonable must be ascertained judicially. But this is because 
the legislature has no control over such a contract. So, too, in matters which do 
affect the public interest, and as to which legislative control may be exercised, if 
there are no statutory regulations upon the subject.” 

Concluding its discussion as to the 14th Amendment to the effect 
that no state shall “deny to any person within its jurisdiction the equal 
protection of the law” the court said: 

“The power to regulate the business of warehouses depends upon the same prin¬ 
ciple as the power to regulate hackmen and draymen, and what can not be done in the 
one case in this particular, can not be done in the other.” 

The court, therefore, with but two dissentients, confirmed the power 
of the state to determine through its legislature what could be reasonably 
charged for services rendered by a corporation in which the public was 
interested, and expressly denied the right of the judiciary to pass upon 
the question except where the controlling legislation or the circumstances 
of the case indicated that the public servant could charge a reasonable 
rate, leaving this unfixed. 

The doctrine of Munn v. Illinois controlled the immediately following 
cases known as the Granger Cases in which the legislatures of Illinois, 
Wisconsin and Minnesota had undertaken to fix rates to be charged by 
railroad corporations operating within the several states. 

Had the doctrine laid down in these cases been steadily adhered to, 
the court would have saved itself much labor and the people from many 
injustices, remediable properly only through the legislature. It was 
not long, however, before the position then taken was receded from, and 
the Supreme Court entered a wide field of railway regulation determining 
as against the legislature and its agencies what rates were reasonable and 
what unreasonable, and making the test to be the ability of the railroad 




44 


or other corporation to obtain, under given rates, the return upon its 
capital regarded by the court as reasonable. 

In Chicago, Milwaukee & St. Paul v. Minnesota (134 U. S., 461, 
33 Law. Ed., 970 ) the first backward step was taken, against the protest 
of three of the nine judges of the court. Justice Bradley in his dissent 
said, among other things, following the opinion in the Munn case: 

“But it is said that all charges should be reasonable, and that none but reason¬ 
able charges can be exacted; and it is urged that what is a reasonable charge is a 
judicial question. On the contrary, it is pre-eminently a legislative one, involving 
considerations of policy as well as of remuneration. . . . By the decision now made 
we declare, in effect, that the judiciary, and not the legislature, is the final arbiter in 
the regulation of fares and freights of railroads, . . .an assumption of authority on 
the part of the judiciary, ... it has no right to make. I he assertion of jurisdiction 
by this court makes it the duty of every court of general jurisdiction, state or federal, 
to entertain complaints against the decisions of the boards of commissioners appointed 
by the States to regulate their railroads; for all courts are bound by the Constitution 
of the United States, the same as we are.” 


Many succeeding cases have confirmed, in the minds of the judges, 
the power of the Supreme Court of the United States to determine, despite 
the action of state legislatures, and finally despite the action of public 
service commissions, the question of the reasonableness of the rates 
fixed for the service of public service corporations. 

The question of constitutionality of many rates submitted to the 
Supreme Court now is unconsciously made to depend not upon law but 
upon the state of the money market at the particular time or place. For 
instance a return of 5 per cent may in New York be reasonable and involve, 
legally speaking, no taking of private property while in Idaho a rate under 
8 per cent may be held too little. So at one time one rate may be con¬ 
fiscatory in the language of the law and at another it may be proper. Thus 
now the court is not discussing legal principles but following the fluctuating 
and ephemeral money market which may change from day to day and 
place to place. 

The powers over this subject which the courts have determined to 
exist in themselves are so tremendous in their nature that it requires a 
man to be little of a prophet to say that by the very force of events within 
a comparatively short time the Supreme Court of the United States will 
be compelled, unless relief is secured otherwise, to find its way back to the 
doctrine of the Munn case. As matters now stand there is scarcely a 
public service corporation which, being subjected to regulations as to 
compensation or other regulations to which it may object as involving 
expenditures, may not appeal to the courts, and the points involved may 
usually be carried to the Supreme Court of the United States. By the 
effect, therefore, of its own decisions the Supreme Court of the United 
States may be called upon by thousands and tens of thousands of cor¬ 
porations scattered through every state, town, village and hamlet of the 
country to settle their differences with the public. All of this will be done 


45 


under the claim that their property is being taken without due process of 
law. 

As illustrating the extent to which the movement of which we speak 
has already been carried, we read (“Judicial Tenure in the United States,” 
Carpenter, page 201): “that between 1868 and 1911, six hundred and 
forty decisions were handed down by the Supreme Court of the United 
States alone, interpreting the first section of the (14th) Amendment.” 

At the present time, perhaps unconsciously to themselves, the judges 
of the Supreme Court are experiencing the necessity of putting brakes 
upon their own action. The most casual examination of recent volumes 
of Supreme Court Reports will indicate that the Supreme Court is refusing 
to interfere in perhaps four cases out of five of those in which appeals 
are made to it against state laws and state taxation, and we may expect 

this proportion to startlingly increase if the court is not to be swamped 

and stifled by a monster of its own creation. 

We may perhaps hope that the court will ultimately reach the theory 
that “Due Process of Law” and “Equal Protection of the Laws” are 
matters to be settled by the state legislatures themselves and that state 
legislation is to be given such full faith and credit as we may now accord 
to the action of state judiciaries, at least in the absence of the violation 
of some direct and unmistakable provision of the Constitution. 

In its origin and development it may be that there will work out a 
rough resemblance between the courses of “due process of law” as viewed 
by the courts, and the “police power” theory. 

When the courts began to deny the right of the legislatures to pass 

acts indirectly taking private property they spoke without limitation, 

but soon found it necessary to create an exception to their own action and 
this they did by commencing to say that notwithstanding the theories 
of due process of law and the unconstitutionality of taking property 
without compensation, the legislatures possess certain police powers which 
would be recognized. Police powers, needless to say, were, so to speak, 
political powers, but the courts never defined them in any conclusive 
way, preserving always to themselves the right to determine, the incidents 
arising, what powers were police powers, and therefore permissible to be 
executed, notwithstanding the particular language of the Constitution, 
and what were not. 

The efifect of this was to insure bevond question the control of the 
judiciary over government and to strengthen its political force. How¬ 
ever, the courts are steadily extending the bounds of the police power 
as exercisable by the legislature and as rapidly restricting their own 
powers. They may act likewise as to “due process of law.” 

We have seen that the judiciary has assumed for itself the right 
to pass upon reasonableness of returns to private property charged with a 
public use. Nevertheless, the subject-matter meeting the approval of 
the court, private property has been treated as having no sanctity. Any 
business considered objectionable to the public may without question 


46 


and without compensation be destroyed, as for instance the liquor busi¬ 
ness by prohibition, and the lottery business similarly. Should therefore 
the Supreme Court consider as an economic proposition that private 
property in land carries with it greater evils than the other institutions 
of which we speak, it would sustain an act doing away with such prop¬ 
erty as a police measure without considering private property as taken 
or the obligation of a contract violated. Those, therefore, who regard 
the Supreme Court as the great protector of private property, and there¬ 
fore favor the retention of judicial power over legislation, may find 
themselves ultimately in error. 

Further discussing the control exercised by the Supreme Court over 
the police power of states, we refer to the case of Lochner v. The People 
(198 U. S., 45; 49 Law. Ed., 937 ), in which the Supreme Court of the 
United States held that the limitation of employment in bakeries to 
60 hours a week and ten hours a day as provided by the New York law, 
was an arbitrary interference with freedom of contract not sustainable 
as a valid exercise of the police power. 

Although the legislature of New York had declared otherwise, the 
majority of the Supreme Court quietly said: 

“There is no reasonable ground for interfering with the liberty of person or the 
right of free contract, by determining the hours of labor in the occupation of a 
baker. . . . We think the limit of the police power has been reached and passed 
in this case. ... If this statute is valid, and if, therefore, a proper case is made 
out in which to deny the right of an individual, sui juris, as employer or employee, to 
make contracts for the labor of the latter under the protection of the provisions of 
the Federal Constitution, there would seem to be no length to which legislation of this 
nature might not go.” 

The majority further considered statutes of this kind as “mere med¬ 
dlesome interferences with the rights of the individual,” not to be passed 
“unless there be some fair ground, reasonable in and of itself, to say that 
there is material danger to the public health, or to the health of the em¬ 
ployees, if the hours of labor are not curtailed.” (If this be not the 
assumption of political power on the part of the judiciary it would be 
difficult to find it a name.) 

The court was not satisfied with these expressions but proceeded to 
read a lecture to the legislature as to its motives, saying: 

“It is impossible for us to shut our eyes to the fact that many of the laws of 
this character, while passed under what is claimed to be the police power for the 
purpose of protecting the public health or welfare, are, in reality, passed from other 
motives.” 

To this opinion and action of the court Mr. Justice Harlan, with whom 
concurred Justice White and Justice Day, interposed a strong and notable 
dissent, declaring among other things that: 

. Whether or not this be wise legislation it is not the province of the court to 
inquire. . . . 

“We are not to presume that the state of New York has acted in bad faith. . . . 

I take leave to say that the New York statute, in the particulars here involved, 
can not be held to be in conflict with the 14th Amendment, without enlarging the scope 


47 


of the amendment far beyond its original purpose, and without bringing under the 
supervision of this court matters which have been supposed to belong exclusively to the 
legislative departments of the several states when exerting their conceded power to 
guard the health and safety of their citizens by such regulations as they in their wis¬ 
dom deem best.” 

Mr. Justice Holmes also dissented, conceiving that— 

“A constitution is not intended to embody a particular economic theory, whether 
of paternalism and the organic relation of the citizens to the state or of laisses faire” 

It is not to be conceived that today, with greater social and economic 
knowledge on the part of the Supreme Court, the act which fourteen years 
ago was held unconstitutional, would meet the same fate. In view of its 
decisions in the cases of Muller v. Oregon (208 U. S., 412 ; 52 Law. Ed., 
551), relating to the hours of women’s labor, and Wilson v. New (Adam¬ 
son Law) (243 U. S., 332 ; 61 Law. Ed., 755 ) we should expect that the 
former error of the Supreme Court would not be repeated. Nevertheless 
the instance serves to prove that control by the judiciary over questions 
which in their nature are social should not be unrestricted. 

Yet even today the Lochner case is cited by the United States Supreme 
Court with approval. 

It would be impossible within decent limitations of space to discuss 
all or any considerable part of the decisions of the Supreme Court declar¬ 
ing state laws to be void. Some of them in fact we have already referred 
to in another connection, as, for instance, the Coppage case. We will, 
however, mention the case of Adams v. Tanner (244 U. S., 590; 61 Law. 
Ed., 1336). In this case the Supreme Court declared void a provision 
of the employment agency law of the State of Washington making it 
criminal to demand or receive from any person seeking employment any 
remuneration for furnishing any information in relation thereto. One 
of the objects of the legislation was to get rid of fake employment agencies. 
The opinion of the court held that such an act was an improper exercise 
of the police power. Justice McKenna dissented from this view and 
Justice Brandeis in another dissenting opinion, in which Justices Holmes 
and Clarke concurred, proved to a demonstration the necessity of the law 
and the jurisdiction of the legislature. In this case we may believe that 
the majority of the Supreme Court again failed to understand and to meet 
the problems arising from present industrial conditions precisely as they 
failed to meet them in the Lochner case, in the Adair and Coppage cases, 
in the Hammer case and in subsequent decisions. 

In the past five terms of the Supreme Court, not covered by my prior 
Report, on fifty occasions the Court has declared unconstitutional 
acts of the legislatures of the,states or orders of subordinate commissions 
or other bodies. Usually this course has been taken on the grounds of 
interference with interstate commerce, lack of due process of law, interfe¬ 
rence with property rights, etc. The case of greatest importance from 
our point of view is that of Truax v. Corrigan, 257 U. S., 312; 66 Law. 
Ed., 254. In this case a statute of Arizona about equivalent to sec. 20 of 


48 


the Clayton Act, was held unconstitutional. The Court may be said to 
have recognized property in the intangible thing known as public favor as 
against ex-employees, and in the judicial process of injunction in favor of 
the employer. To this decision there were four dissentients on the bench. 
Few cases decided by the Supreme Court of late years have received more 
adverse criticism. 

No reasonable dissent can be expressed by broad-minded men from 
the course of the Supreme Court in declaring void the peonage laws which 
have existed in certain states of the South or in protecting the Chinese 
and negroes from the effect or manner of enforcement of state or munici¬ 
pal laws or ordinances which have had the effect of depriving them of 
the personal rights which pertain to other residents within the jurisdiction 
of the authorities enacting the laws. 

It is well that there should exist somewhere a power of review over 
the narrow-minded unconstitutional acts of minor localities which give way 
readily to prejudice. But the larger the unit, the less excuse for inter¬ 
ference. 

We can with propriety and pleasure note at this point the words of 
Mr. Justice Holmes, cited in American Bar Association Journal, August, 
1923: “I do not think the United States would come to an end if we lost 
our power to declare an act of Congress void. I do think the dountry 
would be imperiled if we could not make that declaration as to the laws of 
the several states.” 

After this hasty review we may conclude that the exercise of a judicial 
power to declare state acts unconstitutional has been, largely dependent 
upon the subject-matter, good and evil. We shall, however, find it exceed¬ 
ingly difficult to disentangle the jurisdiction which ought to be preserved 
from the jurisdiction which the Supreme Court has undertaken to exercise 
to the prejudice oftentimes of the popular welfare. Some of the evils 
will, as I firmly believe, and so have expressed myself, right themselves 
because of their very enormity, as for instance, those attaching to the 
interpretation and effect given to “Due Process of Law” and “Equal Pro¬ 
tection of the Law.” Some may be minimized by requiring a considerable 
number in excess of a bare majority to unite in action adverse to state 
procedure. The treatment of this general subject-matter must be deferred. 


\ 


49 


STATE COURTS DECLARING LEGISLATIVE ACTS UNCON¬ 
STITUTIONAL UNDER FEDERAL AND STATE CONSTITU¬ 
TIONS AFTER THE ESTABLISHMENT OF THE FEDERAL 
JUDICIAL SYSTEM 

We have heretofore discussed briefly the decisions of the state courts 
had prior to the adoption of the Federal Constitution on the subject of 
their jurisdiction over the constitutionality of legislative acts. It remains 
to consider like action on the part of state courts succeeding this period 
and down to approximately the present time. In so doing I shall use 
freely Haines’ “American Doctrine of Judicial Supremacy” as to the early 
cases, referring also to other authorities. 

In 1789 the suit of Ham v. McClaws (1 Bay, p. 93) was decided in 
the Supreme Court of South Carolina. Slaves had been imported into 
the state contrary to the directions of an act of the legislature, but under 
the sanction of a former law, and without knowledge on the part of the 
importer of the new one. The court “would not do the legislature who 
passed this act so much injustice as to . . . say that it was their inten¬ 

tion to make a forfeiture of property brought in here as this was.” The 
* court, therefore, felt bound to give such a construction to the enacting 
clause as in its opinion was “consistent with justice, and the dictates of 
natural reason, though contrary to the strict letter of the law,” and 
declared to be void statutes made against natural equity as also statutes 
made against Magna Charta. 

In 1792 the case of Bowman v. Middleton (1 Bay, p. 252) was de¬ 
cided by the same court, involving an act of assembly transferring a free¬ 
hold from one party to another without judicial process, and without a trial 
by jury. The court held that the plaintiffs could claim no title under 
the act as it was against common right as well as against Magna Charta 
and was, therefore, ipso facto void. 

In 1788-89 the judges in Virginia were much concerned over an act 
of assembly establishing district courts and imposing new judicial duties 
without additional compensation. The matter appears to have dragged on 
without final settlement until the case next alluded to. 

In 1793 arose the case of Hamper v. Hawkins (1 Va. Cases, p. 23). 
An injunction to stay the proceedings of a judgment obtained under one 
of the acts of assembly reorganizing district courts brought before the 
court the issue as to whether such acts would be accepted and enforced. 

Judge Nelson believed the constitution comprised fundamental prin¬ 
ciples and rules of higher authority than legislative acts, and if the 
clause under consideration was unconstitutional it was void. Judge 
Roane inquired: 

“Would you have them (the judiciary) to shut their eyes against the law which 
is of the highest authority of any or against a part of that law, which, either by its 
words or by its spirit, denies to any but the people the power to change it? . . . I 


50 


conclude that the judiciary may and ought to adjudge a law unconstitutional and void, 
if it be plainly repugnant to the letter of the Constitution, or the fundamental prin¬ 
ciples thereof.” 

Judge Henry believed that the proposition that parliamentary powers 
were omnipotent “in our constitution is limited and certain rights are 
reserved as before observed.” Judge Tyler would not shrink from a com¬ 
parison of the law with the constitution and pronounce sentence as his 
mind might receive conviction. Judge Tucker believed that the judiciary 
was “bound to take notice of the constitution as the first law of the land; 
and that whatsoever is contradictory thereto is not the law of the land.” 

Considering the fact that these judges seem to have confined them¬ 
selves to a respectful remonstrance to the assembly, in which remonstrance 
the position of the court was affirmed and reiterated, subsequently 
resigning and afterwards requalifying under an amendatory law, important 
as the case may be, their expressions seem rather to be regarded as obiter 
than final. 

In 1796 arose the case in South Carolina of Lindsay v. Commissioners 
(2 Bay, p. 61) in which the Supreme Court of that state, in giving to the 
constitution an overruling operation over every act of the legislature 
inconsistent with it, thought that thereby the people obtained an inde¬ 
pendent security for their rights which rendered them perpetual, and that 
in so doing they were following the will of the people as therein declared. 

In 1801 arose the case of Stidger v. Rogers (2 Kentucky Decisions, 
p. 52). The constitution of Kentucky had provided that trial by jury was 
to remain inviolate and that all laws contrary to the constitution were 
void, and an act of assembly was declared to be in violation of this because 
it required a court to ascertain the value of property in a case which prior 
to the formation of the constitution could only have been ascertained by 
jury. The court treated the act as changing the obligation of the contract 
and void. 

In 1802 in the case of Whittington v. Polk (1 Harris and Johnson, p. 
242) Justice Chase treated an act of assembly of Maryland regarded as 
repugnant to the constitution as presenting the question as to whether it 
was made pursuant to the power vested in the general assembly by that 
instrument. 

In the case of Ogden v. Witherspoon (2 Haywood, p. 227) the legis¬ 
lature of North Carolina by an act passed in 1799 declared that a law passed 
in 1715 should continue in force and the question arose whether an act of 
1789 had not repealed the act of 1715. The court held that the determina¬ 
tion of this was a judicial and not a legislative one, and, having been 
made by a branch of the government not authorized by the constitution 
to make it, was void. 

In State v. Parkhurst (Halstead, p. 443), decided in New Jersey 
in 1804, a dissenting judge of the Supreme Court of the state, in an opinion 
which appeared to be sanctioned by the court of appeals upon a writ of 
error held, in effect that to say that a legislature by its acts could alter 


51 


or amend a constitution was a perfect absurdity and made the creature 
greater than the creator and referred approvingly to the case of Holmes v, 
Walton, to which we have heretofore alluded. 

In the case of White v. Kendrick decided in South Carolina in 1805 
(1 Brevard, p. 469) an act of assembly extending the jurisdiction of 
justices was adjudged unconstitutional. 

In 1805 in the case of University of North Carolina v. Foy (2 Hay¬ 
wood, p. 31) the North Carolina courts held void an act of the legislature 
of 1800 repealing an act of 1789 which granted to the trustees of the uni¬ 
versity all the property that had heretofore or should thereafter escheat 
to the state. This decision carried the doctrine of judicial control to an 
extraordinary extent, allowing, as it did, one legislature to bind for an 
indefinite period in the future action of succeeding legislatures relating 
to a matter of public interest. It allowed the power of a mere public 
agency to carry on education to be beyond review or change by the public 
authorities even though no personal property interests were apparently 
involved. 

In Ohio in 1905 (Western Law Monthly, Vol. 5, June, 1863, p. 4) 
Judge Pease interpreted an act defining the duties of justices of the peace 
in cases exceeding $20.00 and preventing plaintiffs from recovering 
costs in actions commenced by original writ in the court of common pleas 
for sums between twenty and fifty dollars as invalid as repugnant to the 
constitution of the United States and of the State of Ohio. Waiving 
the question as to whether the act referred to may have been repugnant 
to the constitution of Ohio, it certainly was not repugnant to the Consti¬ 
tution of the United States, it having been repeatedly pointed out by the 
Supreme Court of the United States that the constitutional provision under 
such circumstances regulating trial by jury applies only to suits brought 
in Federal courts. 

In 1807 the Supreme Court of Tennessee denied the power of the 
legislature to pass an act perfecting titles to land (1 Overton, p. 245) 
contrary to a compact between North Carolina and Tennessee, and the 
act of Congress of 1806. 

The courts of Pennsylvania at first refused to invalidate acts although 
the judges in several cases indicated their approval of the doctrine of 
judicial control. (Austin v. Trustees of University of Pennsylvania, 1 
Yeates, p. 260.) 

In 1799 (2 Yeates, p. 501) the court stated that if the violation of 
the constitution should in any case be made by an act of the legislature, 
and such violation should unequivocally appear, it would be its duty not 
to shrink from the task of saying such law was void, but in this case the 
act of assembly was upheld. A similar situation arose and similar expres¬ 
sions were used in the case of Emerick v. Harris (1 Binney, p. 418) and 
a like declaration of opinion was made by the Chief Justice in Olmsted’s 
case (Brightly’s Report, p. 15.) 

In 1811 judicial superiority was asserted and vigorously advocated in 


52 


South Carolina (Bryne v. Stewart, 3 Des., p. 475) but the act was not 
declared void. 

In Dupy v. Wickwire (1 Chipman, p. 237) a Vermont court declared 
an act to be clearly unconstitutional and void, the constitution of the state 
prohibiting the legislature from the exercise of judicial powers. However, 
according to Carpenter’s “Judicial Tenure in the United States” (p. 9) : 

“The extent of the encroachments by the legislature was perhaps most wide¬ 
spread in Vermont. The judiciary was completely subordinated to the legislature, 
and the latter department made rules, granted new trials, and vacated and annulled 
judgments. The courts refused to review the constitutionality of legislative enact¬ 
ments, declaring that ‘a mode of procedure pointed out by statute can not be turned 
from although in derogation of the common law. Such action by the courts would 
be to assume an arbitrary power not warranted by law.’ ” (Paine v. Ely, 1 Chip- 
man’s Reports, 37.) 

“‘No idea was entertained (in Vermont) that an act of legislature, however 
repugnant to the Constitution, could be adjudged void and set aside by the judiciary, 
which was considered by all a subordinate department of government.’ ” (Chipman: 
Memoir of Thomas Chittenden, page 112.) 


In 1819 the courts of New York determined, upon the provisions of 
the Federal constitution, that statutes of the legislature affecting the rights 
of a patent covering both banks of the river Saranac impaired the obliga¬ 
tion of contracts, and were, therefore, unconstitutional and void. (People 
v. Platt, 17 Johns., p. 215.) 

Fostered by the precedents we have before recited, and particularly 
influenced by the position of the Supreme Court of the United States 
following the early period of the cases we have cited, the attempts on the 
part of the state courts to declare null and void acts of the legislature 
increased almost by leaps and bounds, the power only occasionally being 
questioned in the courts themselves. The most noteworthy criticism, 
perhaps, from the beginning was contained in the dissenting opinion of 
Judge Gibson of Pennsylvania, in the case of Eakin v. Raub (12 Sargeant 
and Rawle, p. 230). In this case the Chief Justice had indicated his 
opinion that whenever a judge was convinced beyond doubt that an act 
had been passed in violation of the constitution he was bound to declare it 
void. His remarks impelled Judge Gibson to express his own ideas, and 
this he did to an extent too great for more than a passing review. 

Justice Gibson denied that under a written constitution the judiciary 
necessarily possessed othei than its ordinary and appropriate powers, 
and said: 


It will be conceded, then, that the ordinary and essential powers of the judiciary 
do not extend to the annulling of an act of the legislature. Nor can the inference to 
be drawn from this be evaded by saying that in England the constitution, resting in 
principles consecrated by time, and not in an actual written compact, and being sub- 

I? t aIte f rat,( ? n tbe ver u 7 «*of the legislature, there is consequently no separate 
and distinct criterion by which the question of constitutionality may be determined• 

bd r o4sto eS the1u5iic,°a;.' hat havc such a «he’applSn”of* 


I 


53 


He concluded upon this point that: 

“Whatever may have been the cause of the limitation of its jurisdiction origin¬ 
ally, it can exercise no power of supervision over the legislature, without producing 
a written authority for it in the Constitution, either in terms or by irresistible im¬ 
plication from the nature of the government, without which the power must be con¬ 
sidered as reserved, along with the other ungranted portions of the sovereignty, for 
the immediate use of the people.” 

Judge Gibson took the position as will be held in this opinion that a 
different rule prevailed with regard to state laws contrary to the Consti¬ 
tution of the United States, the Constitution and laws of the United States 
being the supreme law of the land, and the judges in every state bound 
thereby under the declaration of the constitution itself. He argued that 
the purpose of a written constitution was none other than to outline 
certain principles and confirm definite rights, thus brought to the partic¬ 
ular attention of the people. It rendered such principles familiar to the 
mass and tended to arouse public opinion, which was the only effectual 
safeguard against legislative usurpation. The constitution of Pennsyl¬ 
vania he found had withstood the shocks of strong party excitement for 
thirty years without a single case of the exercise of this right by the 
judiciary. 

As to the theory that an act unwarranted by the constitution was 
ipso facto void and must be entirely ignored by the courts, the justice 
thought it was an audacious claim to assert that the deliberate and well 
matured judgment of one of the regularly constituted departments of 
government expressed in the form of acts passed under a strict observance 
of the principles of the constitution should be rejected as ipso facto void. 
Why should not the judiciary give the same respect to the judgment and 
act of the legislature that the legislature gave to those of the judiciary? 
The oath of office taken by the judge to support the constitution he con¬ 
sidered related “only to the official conduct of the officer, and does not 
prove that he ought to stray from the path of his ordinary business to 
search for violations of duty in the business of others; nor does it, as sup¬ 
posed, define the powers of the officer.” 

No consideration of policy he believed ought to influence the exercise 
of the right, which would not depend upon the clearness or obscurity of 
the case presented. 

Had it been intended that the judiciary should serve as a check, 
the matter would not have been left in doubt and the judges would not 
have been left to stand on the insecure ground of public opinion as to 
constructive powers; it would have been placed on the impregnable 
ground of an expressed grant, and they would not have been compelled 
to resort to the debates in the convention or to the opinion generally 
entertained at the time. Repugnance to the constitution he thought 
was “not always self-evident, for questions involving the consideration of 
its existence required for their solution the most vigorous exertion of the 
higher faculties of the mind, and conflicts will be inevitable if any branch 


is to apply the constitution after its own fashion to the acts of all others. 
All that remained was to inquire whether the judiciary or the people 
were the tribunal of appeal. 

It has been urged often that there are three coordinate branches 
of the government, arid it has been argued from this that the three 
branches are coequal. The latter argument did not meet Judge Gibson’s 
approval. It was not easy, he said— 

“to comprehend how the power which gives law to all the rest, can be no higher 
rank than the one which receives it. . . . Legislation is essentially an act of sovereign 
power; but the execution of the laws by instruments that are governed by prescribed 
rules, and exercise no power of violition, is essentially otherwise. The very defini¬ 
tion of law, which is said to be ‘a rule of civil conduct prescribed by the supreme 
power of the state,’ shows the intrinsic superiority of the legislature. It may be said 
the power of the legislature also is limited, by prescribed rules. It is so. But it is, 
nevertheless, the power of the people, and sovereign as far as it extends. It can not be 
said that the judiciary is coordinate merely because it is established by the Constitu¬ 
tion. . . . Inequality of rank arises not from the manner in which the organ has 
been constituted, but from its essence and the nature of its functions; and the legisla¬ 
tive organ is superior to every other, inasmuch as the power to will and command is 
essentially superior to the power to act and obey. It does not follow, then, that every 
organ created by special provision in the Constitution is of equal rank. Both the 
executive, strictly as such, and the judiciary are subordinate; and an act of superior 
power exercised by an inferior ought, one would think, to rest on something more 
solid than implication.” 

Finally it was the opinion of Judge Gibson that it remained— 

“with the people, in whom full and absolute sovereign power resides, to correct abuses 
in legislation, by instructing their representatives to repeal the obnoxious act. What 
is wanting to plenary power in the government is reserved by the people for their own 
immediate use; and to redress an infringement of their rights in this respect would 
seem to be an accessory of the power thus reserved.” 

Later in life (in 1845) when Justice Gibson had become the Chief 
Justice of his court, the foregoing opinion having been quoted, it is fair 
to say that he remarked that he had “changed that opinion for two reasons. 
The late convention, by their silence, sanctioned the pretentions of the 
court to deal freely with the acts of the legislature; and from experience 
of the necessity of the case.” (Norris v. Clymer, 2 Penna. Reports, p. 
281 .) F 

Age, with its attendant conservatism, and advancement in power, 

seem to have caused the judge to deny the force of his own argument_ 

a condition of mind which was later paralleled by Herbert Spencer who, 
in his youth, in writing “Social Statics,” demonstrated to perfection the 
foundations upon which “Progress and Poverty” was afterwards written 
by Henry George, and when his surroundings were changed and bent 
of mind affected by age so far repudiated the logic of his earlier writings 
that George was justified in his work “The Perplexed Philosopher.” 

All the reasoning of Justice Gibson in Eakin v. Raub was rendered 
more luminous, were it necessary, by later decisions of the Supreme Court 
of Pennsylvania. There has been no court, perhaps in the Union which 



55 


lias gone to greater lengths to obstruct social legislation on the ground 
of unconstitutionality than has this court. We may cite some instances. 
The Act of June 29, 1881, providing that wages should be paid only in 
lawful money and at regular intervals was declared to be unconstitutional 
as interfering with the freedom of contracts. Legislation forbidding 
employers to discharge workment on account of their membership in 
labor organizations (Act of June 4, 1897) has been found unconstitutional. 
The Pennsylvania Act of May 20, 1891, requiring employers engaged 
in mining and manufacturing to pay workmen semi-monthly under penalty, 
was held to impair the obligation of contracts, to interfere with the right 
to acquire and possess property and to violate the provision of the state 
constitution prohibiting passage of special laws regulating trade, mining 
or manufacturing. The Pennsylvania act of July 15, 1897, prohibiting 
the screening of coal before it had been weighed and credit given to the 
miner for the full amount mined by him was declared unconstitutional 
as depriving property owners and laborers of the right of making contracts 
concerning their respective interests, without advancing the general wel¬ 
fare or the public health. 

The act of 1891 compelling the appointment of a certified mine fore¬ 
man and imposing on the employer liability for his negligence was held 
unconstitutional as placing an improper burden upon the employer and 
because, according to the common law of Pennsylvania, he was a fellow 
servant of the miners who worked in the mine with him. 

We may note that since this time the Supreme Court of the United 
States in Wilmington Star Mining Company v. Fulton, 205 U. S., 60, 
has declared the power of the state to abrogate the law as to fellow service, 
and in sustaining the present Federal Employers’ Liability Act it has 
followed a like line of reasoning. 

The destructive appetite of state supreme courts for acts of the 
legislature has grown with what it fed upon. We find, according to 
Haines’ American Doctrine of Judicial Supremacy, page 288, that from 
1776 to 1819 the highest courts of the states had declared but eighteen 
laws unconstitutional, as follows: 

Summary of Lazvs Invalidated by State Courts From 1776 to 1819 


1. Organization of courts and judicial procedure. 6 

2. Denial of trial by jury. 4 

3. Taking of private property.3 

4. Contrary to Constitution as fundamental law. 2 

5. Obl’gation of contract.*.— 1 

6. Bill of attainder._. 1 

7. Lack of proper procedure in passage of act. 1 


18 

When the Supreme Court of Illinois is in active operation, it can do 
this much now in a year, and the extent to which the courts operate today 
mav be shown by Appendix B, from which it will appear that to 1916, 
3,789 statutes had been declared unconstitutional. 









56 




Referring to the summary of the New York Library for the years 
1903-1908 (see Appendix C), it will be noted that a leading cause for de¬ 
claring acts unconstitutional in states is the lack of clear title.. This is 
largely what may be termed a mechanical defect, and is not an important 
heading, because errors of this kind may be corrected by the succeeding 
legislature. Some of the courts, however, have been unduly technical, 
although had we the time it might be shown that a proper exercise of 
this jurisdiction would more nearly lie within the just rights of courts 
than'does any other heading, except, perhaps, that of determining what 
duties are strictly judicial, under which heading of the first table eight 
per cent of the total laws declared void fall according to table just referred 
to. It is interesting to note, so far as one can infer from the list, that 
matters of strictly human right are rarely the subject of infringement 
by legislative power. According to the tables courts spend a large share 
of their time determining against the legislature abstruse and doubtful 
questions of property. 

It would prolong this discussion to intolerable lengths to undertake to 
analyze the work of state courts in the manner even in which we have 
sought to treat decisions of the Supreme Court of the United States, but 
pari passu the same remarks are to be made with regard to them and like 
conclusions reached. The tendency of the state courts, once they have 
assumed the right to declare acts unconstitutional, to gather to themselves 
further powers of legislation by referring to tests resting in their inner 
consciousness and likely to vary with the predilections of the judge has 
been shown in a number of cases, some being mentioned herein and many 
of which are cited in a footnote of an article by Professor Roscoe Pound 
to be found in Volume 24, Harvard Law Review, page 609, which note is 
copied below. 

(Footnote.) —“In a recent judicial discussion of admission to the bar, the 
court, looking at the matter solely from the point of view of the individual applicant 
and disregarding all social interest in the matter said: ‘There is a law higher in this 
country, and one better suited to the rights and liberties of the American people—that 
law which accords to every citizen the natural right to gain a livelihood by intelligence, 
honesty and industry in the arts, the sciences, the professions, or other vocations.’ In 
re Leach, 134 Ind., 665. Another court tells us that the right to take property by 
will is an absolute and inherent right, not depending upon legislation. Nunemacher 
v. State, 129 Wis., 190, 198—203 (1907). Another court says that a right of privacy, 
the existence whereof many of our courts deny, ‘is derived from natural lawthat it 
has its foundation in the instincts of nature . . . consciousness being the witness 
that can be called to prove its existence.’ Cobb, J., in Pavesich v. Life Ins. Co., 122 
Ga., 190, 194 (1905). Compare Jeffers v. State, 33 Ga., 367; Lanier v. Lanier, 5 
Heisk. (Tenn.), 572; the notion that ‘natural rights’ as well as constitutional provi¬ 
sions limit the police power, Field, J., in Butchers Union Co. v. Crescent City Co., 
Ill U. S., 746, 762; also the notion of individual rights, apart from constitutional 
restrictions’ ‘beyond control of the state,’ Miller, J., in Loan Ass’n. v. Topeka, 20 
Wall. (U. S.), 655, 662 and of property rights ‘going back of all constitutions,’ 
Harlan, J., in Chicago, B. & O. R. Co. v. Chicago, 206 U. S., 226, 237; the notion 
of a fundamental theory of legislation of intrinsic validity, to be read into constitu¬ 
tions, O’Brien, J., in People v. Coler, 166 N. Y., 1, 16 (1901) ; the notion of ‘natural 
incapacities’ (in the event always those recognized at common law) to which the 


57 


legislature can not add new ones based merely on the facts of the modern industrial 
conditions. State v. Loomis, 115 Mo., 307, 315 (1893) ; State v. Goodwill, 33 W. Va., 
179 (1889) ; Frirer v. People, 141, Ill., 171, 186 (1892) ; the idea that the legislature 
can not determine that certain industries which employ laborers are dangerous, an¬ 
nounced recently by the New York Court of Appeals.” 

The extent to which labor laws were declared unconstitutional up to 
the year 1922 is very well shown by Bulletin No. 321 of the Bureau of 
Labor prepared by Mr. Lindley D. Clark, and we are relieved from the 
necessity of reviewing the subject in detail. Perhaps as good an example 
of the manner in which in order to declare an act unconstitutional and 
prevent its recurrence because in opposition to the then prevalent political 
point of view as we can furnish was afforded by the Court of Appeals of 
Maryland in the case of Wells v. Hyattsville, 77 Md., 125. We do not 
cite this because the Court of Appeals of Maryland has to a greater extent 
than others departed from canons of decision usually governing courts, 
but because this particular case seems to illustrate to an unusual extent 
the errors committed by courts in declaring statutes unconstitutional. 

The Commissioners of Hyattsville, acting as they believed, under 
permission granted them by an act of the Legislature in 1892, exempted 
from taxation the value of all improvements and personal property, 
obtaining from land values all the revenues needed for town purposes. 
The assessment providing for this had scarcely gone into effect when a 
number of those who felt their interests bound up with the old system of 
attempting to tax everything, appealed to court by way of mandamus, 
asking that the Commissioners be required to put upon the assessment 
rolls the improvements and personal property the value of which had 
been omitted. They failed in the lower court, but succeeded, in so far as 
declaration of opinion upon constitutional and economic points was con¬ 
cerned, in the Court of Appeals. That court first held, as a matter of 
construction of the town charter and the amendments thereto, that the 
Commissioners had not the power to create the exemptions they had 
created. Assuming that the case had to be decided at all on its merits, 
the court would not have been going beyond its duty thus far, but it was 
not satisfied. The court next decided that under the terms of the Consti¬ 
tution all property had to be taxed even for municipal purposes, although 
it had never been supposed before in Maryland that the constitutional 
provision on the subject of taxation applied to municipalities, and within 
about three years thereafter the court in another connection stated sub¬ 
stantially that the Constitution had no application to municipalities. (Hanna 
v. Young, 84 Md., 179.) Concluding, however, that municipalities were 
a part of the state government, and that all property should be taxed, the 
opinion continues.: 

As those who own buildings, improvements and personal property in any of its 
various forms—as well intangible as tangible—are equally protected in their posses¬ 
sions and in their natural rights by the state and local governments with those who 
own the land; the support of those governments should place no heavier charge upon 


58 


the one than the other class of individuals. This has been the uniform and consistent 
principle always followed in Maryland. Eminently just in itself as a sound and long 
accepted axiom of political economy, it has been incorporated in her organic law since 
November the third, 1776; it has been upheld by her courts and steadily and ten¬ 
aciously adhered to by her conservative people. But the act of 1892, not only under 
the construction placed upon it by the appellee, but palpably by reason of its exemp¬ 
tion of all personal property, attempted to overthrow this salutary principle and to 
disregard the fifteenth Article of the Declaration of Rights, and to substitute an ex¬ 
perimental, if not a visionary, scheme, which if suffered to obtain a foothold will in¬ 
evitably lead to ruinous consequences. By making no provision for the assessment of 
personal property in the village of Hyattsville, and by confining the assessment to 
lands and improvements only, the Act of 1892 undertook to exempt all personal 
property from municipal taxation ; and, if the appellee’s interpretation of the act be 
conceded to be correct, it in like manner authorized the exemption of buildings and 
improvements. Thus the whole cost of conducting the municipal government in all 
its departments was attempted to be thrown exclusively upon the land. If the legis¬ 
lature may lawfully do this in the particular instance of Hyattsville, it may do the 
same thing in the case of a larger and more populous municipality, and likewise with 
reference to a county, and if as to one county, then too, as to every county in the 
state. If the assessed valuations upon buildings and improvements and upon personal 
property be stricken from the assessment books of the several counties, and the taxes 
be levied only upon the owners of the land, the burden would speedily become in¬ 
sufferable, and land would cease to be worth owning. Such a system would eventu¬ 
ally destroy individual ownership in the soil, and under the guise of taxation would 
result in ultimate confiscation.” 

We thus learn from the court that uniform taxation upon all objects, 
irrespective of their nature and irrespective of the incidence of taxation, 
is “eminently just in itself as a sound and long accepted axiom of politi¬ 
cal economy,” John Stewart Mill and other equally distinguished writers 
to the contrary notwithstanding. We find that the town had “attempted 
to overthrow this salutary principle,” despite the fact that today no per¬ 
son who is familiar with the subject of taxation can call taxation of every¬ 
thing either “salutary” or a “principle.” We find that the court declared 
that the appellees had sought to “substitute an experimental, if not a vision¬ 
ary, scheme which, if suffered to obtain a foothold, would inevitably lead 
to ruinous consequences.” The fact is that at the time the opinion was 
penned, certain towns in New Zealand practiced it, while since that time 
the system has spread throughout New Zealand, Australia, and Western 
Canada. We note that since then the burden a system of this sort places 
upon the owners of land has not become “insufferable” if they use their 
land, but quite to the contrary, and that land only ceases “to be worth 
owning” when it is held out of use to the detriment of the community. 

After having indulged in these observations upon political considera¬ 
tions with which the court, as a court, had nothing whatever to do, the 
judges next decided that the action of mandamus was too late; that relief 

should have been sought by way of injunction and that the suit should 
be dismissed. 

In short, the court indulged in unnecessary, if not erroneous declara¬ 
tions of law, expressions baseless and uncalled for with regard to political 
economy, and wound up with the statement, in effect if not in words, that 


59 


everything it had said upon the subject was obiter dicta. All this was done 
for the purpose of declaring a statute to be unconstitutional which did not 
meet with the political approval of the judges. 

The political effect, however, of the decision was not to be ignored. 
It stayed the progress of tax reform in the State of Maryland for twenty- 
two years, in fact until in the fall of 1915, when the people of the state 
adopted a constitutional amendment in conformity with modern thought 
and beyond the power of judges to defeat. 

The whole case affords a striking illustration of the unwisdom of the 
exercise by the courts of the political power of declaring acts of the legis¬ 
lature unconstitutional. 

Some decisions of this character have had important effects upon the 
public mind, perhaps none more so than that of the Ives case (Ives v. South 
Buffalo Railway Co., 210 N. Y., p. 231; 34 L. R. A. (N. S.) 162) wherein 
the Court of Appeals of New York held void an act of the legislature, 
prepared carefully by some of the best lawyers in the state, providing 
for workmen’s compensation. This case more than any other was respon¬ 
sible for the proposition for recall of decisions advocated by ex-President 
Roosevelt. That in its determination the court was, despite some language 
elsewhere to the contrary, influenced by its political view is evident from 
one of its expressions: “If such economic and sociologic arguments as 
are here advanced in support of this statute, can be allowed to subvert the 
fundamental idea of property, then there is no private right entirely safe, 
because there is no limitation upon the absolute discretion of legislatures, 
and the guarantees of the Constitution are a mere waste of words.” 

Stated in another fashion the court, balancing upon the one side 
possible social advantages, and, on the other, the rights of property, 
found the greater weight from a political point of view to be with the 
latter. This affords a further illustration in addition to the numerous 
instances we have cited of the fact that the courts, in the exercise of this 
power are acting politically or legislatively, rather than in a strictly 
judicial capacity. 

We shall forbear from enlarging upon the attitude and actions of 
the state courts upon political questions, as much that might be said 
would be a repetition of what has already been observed in connection 
with the discussion of the decisions of the Supreme Court of the United 
States. But this point we would emphasize: The position of the judi¬ 
ciary in the states, at least of their Supreme Courts, with regard to state 
legislation, is exactly parallel with the position of the Supreme Court 
with regard to the legislation of Congress. If the Supreme Court ought 
not to have or exercise any control over the legislation of Congress, 
neither should the Supreme Courts of the states exercise any control 
over the legislation of their respective states. (In fact, in only one state 
in the Union—Georgia—has the constitution in express terms conferred 
this power upon its judiciary.) On the other hand, if, in the interest 
of uniformity and of the preservation of the Constitution from attack by 


a 


60 


subordinate bodies, the Supreme Court should have power to control 
the action of states and their subordinate agencies where it is most likely 
to be violated, so the highest state judiciary should be able to control 
the illegal acts of counties, cities, towns, commissions, and executive 
officers when not acting under the strict authority of the state constitu¬ 
tion and laws. 

We again remark that while the Supreme Court more rarely interferes 
with acts of national legislation, the table we produce indicates that 
the tendency, so far as the judiciary of the states are concerned,, has 
been quite different. The state courts have shown less fear of the 
state legislatures than has been displayed in a national way. Beyond 
this, the power of control having been once established, the oppor¬ 
tunities for its exercise have been multiplied among the states by the 
lengthening of state constitutions, and the multiplicity of provisions at¬ 
taching either to the manner in which legislation shall be enacted, or the 
limitations of its subject-matter. With each new provision has come a 
new occasion or excuse for the exercise of judicial power. These have 
been continually availed of. 

All things considered, therefore, the corrective for which we seek 
must be of the same general nature whether applied to the nation or to 
the states. 


PRACTICE OF FOREIGN COUNTRIES AS TO REVIEW OF 

LEGISLATIVE ACTS 

As we have indicated, in the time of Blackstone the Parliament of 
England was omnipotent. It is immaterial to say that Parliament is a 
court, and that as a court—the highest in the land—its declarations are 
followed by other courts. It is undoubtedly true that at important 
periods of its history Parliament has been a court. (See “The High Court 
of Parliament. and its Supremacy,” by Mcllwain.) Prof. Mcllwain 
remarks, with justice (Preface, page X) : 

“To say that the present attitude of our courts toward statutory enactment has 
an historical basis, to hold as I do that it is a judicial habit which can be traced back 
to conditions in mediaeval England, is by no means to give it a clean bill of health 
To say that this habit has precedent for it is not necessarily to say that it is wholly 
good. To show that it has marked resemblances to conditions in Tudor England is 
not enough to shield it from the criticism of the twentieth century.” 

It suffices to say that at the present time Parliament is not a court, 
even though a few members of the Upper House act as a court of appeal’ 
those so acting being judges themselves, though theoretically the whole 
House of Lords might have taken part in the judicial action. 

England, a country upon whose traditions and ideas of liberty our 
own are largely based, and in which the liberty of the subject, as he is 
termed, is at every point as well conserved as possibly can be the liberty 


61 


of a citizen of the United States, has no judicial review. Yet it remains 
a country as to which we may understand Tennyson’s tribute: 

“A land of settled government, 

A land of old and just renown, 

Where freedom slowly broadens down 
From precedent to precedent.” 

Peace now exists between England and Ireland, with good grounds 
for the belief that it is long to continue. In passing it is worthy of note 
that under our practices every device of peasant proprietorship, land 
courts and final arrangements between the two countries would have been 
declared unconstitutional and void. At least, this affords ground for 
thought as to the essential justice of our methods. 

If we cross the Channel from England to France we find according 
to “Judicial Power and Unconstitutional Legislation” that: 

Excluding the ill-fated document known as the Polish Constitution of May 3d, 
1791, the French constitution of September 3d, 1791, was the first written one in 
Europe. Article 16 of its declaration of the rights of men and citizens is thus 
translated: 

“Every society in which the guarantee of rights is not secured, or the separation 
of powers is not fixed has no constitution.” 

Articles 1 and 3 of Chapter 5 of the Constitution provide: 

“The judicial power can not in any case be exercised by the legislative body 
or by the king. 

“The tribunals can not interfere with ( s’immiscer dans ) the exercise of the 
legislative power, nor suspend the execution of the laws, nor encroach upon adminis¬ 
trative functions, nor cite any administrators to appear before them on account of 
their functions.” 

The general relation of the French constitution of 1791 to the past was revo¬ 
lutionary, and its continuance was of brief duration. Its above restrictions of 
judicial power had, however, a future and a past. That restriction has unquestion¬ 
ably prevailed in France from 1791 to the present day under all forms of government. 

There was tremendous reason in French experience for the adoption 
by France of the rule to which from 1791 it has adhered; that is, that 
the judiciary should not presume to interfere with the legislation of the 
French Assembly. Reviewing the powers exercised by the Parliament 
( Parlement ) of Paris, itself a body of judges, Brooks Adams, in his 
“Theory of Social Revolutions,” referring to the edict prepared by Turgot 
doing away with the exemption of the nobility from taxation, says (page 
141) : 

“To be binding, the edicts had to be registered by the Parliament among the 
laws of France, and Parliament declined to make registration on the ground that 
the edicts were unconstitutional, as subversive of the monarchy and of the principle 
of order. The opinion of the court was long, but a single paragraph gives its purport: 
‘The first rule of justice is to preserve to every one what belongs to him; this rule 
consists, not only in preserving the rights of property, but still more in preserving 
those belonging to the person, which arise from the prerogative of birth and of 
position. . . . From this rule of law and equity it follows that every system which, 
under an appearance of humanity and beneficence, would tend to establish between 
men an equality of duties, and to destroy necessary distinctions, would soon lead to 
disorder (the inevitable result of equality), and would bring about the overturn of 
civil society.' ” 


62 


With entire propriety Mr. Adams remarks (page 142) : 

“This judicial opinion was an enunciation of the archaic law of caste as °PP°sed 
to the modern law of equality, and the cataclysm of the French Revolution hinged 
upon the incapacity of the French aristocracy to understand that the environment, 
which had once made caste a necessity, had yielded to another which made caste an 

impossibility.” 



In a word we may say that the power of the judges to declare an act 
unconstitutional and to refuse it registration as contrary to the then urn 
written constitution of France—therefore unconstitutional was a most 
important factor in furthering the French Revolution with all its horrors. 

It has bee urged by at least one Bar Association that the effect of 
want of power in the judiciary to review legislative acts in France has 
made of the French judiciary a servile body, and with fine inconsistency 
the same Bar Association report has sought to demonstrate the truth of this 
statement by referring to the Dreyfus Case, forgetting that the decision 
in this case was first rendered by a military court-martial and was finally, 
to exactly translate the French word, “broken” by the Court of Cassation 
of France. The Bar Association report also forgot that if it be true that 
the French judiciary is servile, the cause is to be found in quite another 
circumstance. A man enters the judicial service precisely as he would 
enter another “career,” such as that of the diplomatic or consular service, 
and is in his advancement subject to favor of the executive power. Under 
these circumstances servility may be profitable. Reasoning of such a 
nature, ignoring essential facts, coming from the Bar Association reminds 
one of the fanciful logic of “Alice in Wonderland.” 

If we turn to Germany we find this declaration of Bluntschli’s Public 
General Law cited by Coxe (page 75) : 


“In most modern states there is, however, no legal remedy against the validity 
and applicability of the law allowed upon the ground that the. contents thereof stand 
in contradiction to the constitution. The authority of the legislative body, so far as 
its functions reach, is valid as the highest and as an incontestable authority. Hence 
the courts are not empowered to touch the contents of a law and, by their own 
authority, to declare the same to be invalid.” 


Further citing from Coxe (page 95), we learn: 

“The quotation from Bluntschli’s Public Law, previously given, is authority for 
the proposition that, in 1863, in Germany, no judicial court could declare a law of the 
state to be void because conflicting with the written constitution of the state. That 
proposition was in 1863, and is since, equally true of the judiciaries of the several 
states of the German Empire. Between those two dates, however, two most interest¬ 
ing cases have been cited, in the first of which the truth of the proposition was denied 
with great ability by the Hanseatic Court of Upper Appeal at Lubeck. In the second 
case, the doctrine of the first was overruled by the Imperial Tribunal or Supreme 
Court of the German Empire. Thus, with the exception of a temporary recognition 
within the limited territories of the Hanseatic republics, the proposition in question 
has always been law in the different states of Germany possessing written constitu¬ 
tions ; that is to say, in nearly every German state.” 

The Bar Association report before referred to attributes the combina¬ 
tion of German autocracy and German socialism to the want of judicial 


63 


control over legislative acts, coupled with the fact that there is a German 
Council of Revision which may prevent the enactment of proposed laws 
because of want of constitutionality or irrespective of such a question. 
There is no apparent connection between the powers of the Council of 
Revision and the want of power of the German judiciary over legislative 
acts. If there were, we could in truth reply that the President, with his 
veto power, is our Council of Revision. The history of England suffi¬ 
ciently demonstrates that judicial power over constitutions is not neces¬ 
sary to insure the freedom of the citizen or subject or to escape autocracy. 

It is to be noted, however, that in Germany the highest imperial court 
may declare the acts of subordinate state legislative bodies to be uncon¬ 
stitutional and this has afforded a precedent to be borne in mind in the 
subsequent discussion of the whole subject. 

Turning to Switzerland we discover that a condition exists analogous 
to that prevailing in Germany, but without a council of revision. The 
Swiss Federal Tribunal is obliged to obey and apply all laws of the federal 
assembly in all cases coming under its jurisdiction, the last paragraph of 
article 113 of its constitution reading: 

“In all these cases, however (covering both its civil and criminal jurisdictions), 
the laws and generally obligatory resolutions passed by the Federal Assembly and 
also the treaties ratified by it shall be binding for the Federal Tribunal.” 

In a parallel way, the judiciary of a canton may not decide whether 
a cantonal law is or is not repugnant to the cantonal constitution, although 
it would seem that the Federal Tribunal may pass upon the question as to 
whether the cantonal laws are contrary to the Federal Constitution. 
(Coxe, pages, 87, 88, 89.) 

Having discovered that England, France, Germany and Switzerland 
do not find it necessary that the judiciary should review legislative action, 
in England without a written constitution and in the other countries with 
one, it does not seem important to prolong much further this branch of the 
discussion. It becomes relatively unimportant what powers of control 
over colonial action are retained by the British Privy Council as to the 
Australian, South African, Canadian or other colonies subordinate to the 
English Crown, or what may be the provisions of the constitution of 
Australia or of the Dominion. Still less important to us is the discovery 
of the fact that in Argentina, Venezuela and perhaps other South Ameri¬ 
can countries, the judiciary assumes to overrule the legislature in its 
actions involving constitutional questions. 


y 


/ 


64 


MANNER IN WHICH CONSTITUTIONAL QUESTIONS MAY 

ARISE 

From a review of the discussion up to this point, and from an analysis 
of the cases referred to in the appendices, it will become apparent that 
questions of constitutional law have arisen under the following different 
classes of circumstances: 

First. As to Federal authorities— 

(a) Involving the constitutionality of acts of Congress. 

(b) Involving, apart from the provisions of any act of Congress, acts of 

Federal Judiciary or Federal Administrative authorities. 

Second. As to state authorities— 

(a) Involving constitutionality under the Federal Constitution of state con¬ 

stitutions and state laws. 

(b) Involving constitutionality of acts, apart from state laws or constitu¬ 

tions, of state authorities including municipalities, executive officers, 
judges, and commissions and other bodies possessing authority 
deputed to them by the state legislature. 

LIMITING EXERCISE OF JUDICIAL POWER TO UNANIM¬ 
ITY OR TO A LARGE PERCENTAGE OF JUDGES 

The Supreme Court has many times said that an act of Congress 
should never be declared unconstitutional so long as a reasonable doubt on 
the subject remained; that this rule was one which it was bound to 
follow in order to display toward a coordinate branch of the Government 
the respect which was its due. For instance Judge Chase in Hylton v. 
U. S., 3 Dallas, 171, 1 Law. Ed., 556 (before the power was ever exercised 
by it), said: 

“It is unnecessary at this time to determine whether this court constitutionally 
possesses the power to declare an act of Congress void on the ground of its being 
made contrary to, and in violation of , the Constitution; but if the court have such 
power, I am free to declare that I will never exercise it, but in a very clear case.” 
(Italics in report.) 

Justice Moody in his dissent in Hammer v. Dagenhart, 247 U. S. 
251, 62 Law. Ed., 1101, said: “The Court has never exercised the mighty 
power of declaring the acts of a coordinate branch of the Government 
void except when there is no possible and sensible construction of the act 
which is consistent with the fundamental organic law. * * * This 

is more than a canon of interpretation; it is a rule of conduct resting 
upon consideration of public policy.” 

In the Sinking Fund Cases, 99 U. S. 700, 25 Law. ed. 496, it was said: 
“Every possible presumption is in favor of the validity of the statute, and 
this continues until the contrary is shown beyond a reasonable doubt.” 

In the case of Ogden v. Saunders, 12 Wheaton 213, 6 Law. ed. 606, 
it was declared that “It is but a decent respect, due to the wisdom, in¬ 
tegrity, and the patriotism of the Legislative body by which any law is 


65 


passed, to presume in favor of its validity until its violation of the Con¬ 
stitution is proved beyond a reasonable doubt.” 

Similar opinions are recorded in the Legal Tender Cases, 12 Wallace 
457, and Trademark Cases 100 U. S., page 82. 

Despite these expressions time and again the Supreme Court has 
declared acts of Congress unconstitutional when there were contrary 
minorities of four and a lesser number as against five and a greater 
number less than unanimity. 

To the lay mind it would seem that when from one to four members 
of the court were clearly of the opinion that an act of Congress was 
constitutional a reasonable doubt of the soundness of their conclusions 
should have been raised in the minds of the majority, particularly as in 
questions of fact such reasonable doubt is presumed to exist in the jury 
box until unanimity of opinion has been obtained. 

We have been told by advocates of judicial control of legislation on 
constitutional questions, as if it were unprecedented and unreasonable, 
that to assume the existence of a reasonable doubt because of differences 
of opinion within the body of the court would be in practice to make a 
minority control the action of the majority and therefore to make con¬ 
stitutional questions determined in favor of the action of Congress by a 
minority. These who so argue forget that some of the most important 
actions of Congress, as for instance in the submission of Constitutional 
Amendments, or passing a bill over Presidential veto, or, as to the Senate, 
in the ratification of treaties, have to be determined by a two-thirds vote. 
They also forget that in many instances toward the conclusion of a ses¬ 
sion the President may defeat the action of both Houses by failing to 
sign or return a bill before an adjournment. They also overlook the 
fact that acts of Congress have been declared unconstitutional by the 
change of a single vote in the Supreme Court, thus giving the odd man 
of vacillating mind the opportunity to set aside the mature action of 
both Houses of Congress and the first impressions of a majority on the 
supreme court. 

Since the first Report and Study submitted to the Executive Coun¬ 
cil, carrying the work of the Supreme Court through the October term, 
1917, five terms of court have elapsed and in those five years the Supreme 
Court has declared ten acts of Congress or Sections of Congressional 
acts to be unconstitutional. In only two cases, one relating to the juris¬ 
diction of the court itself and the other to cotton futures, was the court 
unanimous. In one case, that affecting the Child Labor Tax Law, there 
was a single dissent. In two cases there were two dissents. In two cases 
there were three dissents, and in three, and these among the most 
important, there were four dissents. 

If the requirement of unanimity in the court or something approach¬ 
ing it seems reasonable to the lay mind so also is it commencing to be 
accepted by a rapidly increasing number of lawyers. Reference to the 
columns of such an orthodox publication as the Journal of the American 

313 A—3 


66 


Bar Association affords abundant proof of the correctness of this state¬ 
ment. The writer believes thoroughly and has sought to demonstrate 
that the Constitution gives the Supreme Court no power of censorship 
over the actions of Congress and that the possession and exercise of such 
a power is innately dangerous. Even in controlling state legislation, in 
the interest of social progress, a mere majority should not be permitted 
to upset the action of a state legislature. 

THE ARGUMENT IN FAVOR OF MAINTAINING THE 
JUDICIAL POWER AS NOW EXERCISED 

The argument in favor of the power of courts to declare legislative 
acts unconstitutional can be briefly but we may believe fairly stated. 

There are those who contend that beyond all question power exists 
in the Supreme Court under the Constitution to declare acts of Congress 
unconstitutional because of the language contained in Article 6: “This 
Constitution and the laws of the United States which shall be made in 
pursuance thereof, and all treaties made, or which shall be made, under 
the authority of the United States, shall be the supreme law of the land; 
and the judges in every State shall be bound thereby, anything in the Con¬ 
stitution or laws of any State to the contrary notwithstanding.” 

The argument is that only such laws as are “made in pursuance” of 
the Constitution are valid laws; that there must be some power charged 
with the expressed duty of determining whether the laws are made pur¬ 
suant to the Constitution; that this is in itself a judicial function and that 
being such it is reposed in the judiciary; that the power and duty to declare 
acts which, in the opinion of the judiciary are not made pursuant to the 
Constitution is one which may not be evaded or disregarded by the judges 
whatever their personal predilections or desires might be. 

The argument is plausible but after all requires only a brief examina¬ 
tion. 

Waiving the argument that the making of laws in pursuance of the 
Constitution undoubtedly refers to the method of enactment rather than 
the substance of the thing enacted, it is to be said that the Constitution is 
as binding so far as tjie enactment of laws is concerned upon Congress 
and the Executive, who acts legislatively in the signing of bills, as it can 
possibly be upon the courts, and no express power of review is given to 
the. judges enabling them to determine the unconstitutionality of acts 
which have once been passed upon affirmatively by the Legislature. 

We are supposed to have a government divided into three coordinate 
branches, without any power of control on the part of any one branch of 
the acts of another acting within the scope of its powers. This view of 
course does not interfere with the courts’ action in restraining the Executive 
or executive agencies from the doing of acts which find no foundation in 
the Constitution or the laws of .Congress. It does, however, restrain the 


67 




courts or at least should restrain them from revising the judgment of 
another branch of the Government upon a question as to which it had a 
constitutional right and duty to act, as in the making of laws, or, so far 
as the Executive is concerned, in the enforcement of a law once enacted 
by Congress and therefore passed upon as constitutional. 

The contention therefore that the courts have a right to pass on an 
act of Congress as to its constitutionality is a mere bald assumption. 

In favor of this assumption some writers have argued that the con¬ 
trary would give Congress the right to pass upon its own jurisdiction, as 
if this were something extraordinary. The courts continually have and 
exercise such a power as to themselves and the validity of their action in 
so doing is justly recognized. There is no sanctity about the general prin¬ 
ciple which should prevent its being invoked in favor of the jurisdiction 
of Congress as well as in favor of the jurisdiction of courts, particularly 
when the obligation clearly rests upon Congress in the performance of its 
legislative functions to determine the constitutionality of the act it per¬ 
forms. 

Back of much of the argumentation in favor of the power of the 
courts lies the assumption that Congress is unfit to act upon constitutional 
questions and therefore should not be allowed the power. This of course 
ignores the true question, which is as to the right and duty of Congress 
to pass upon the constitutionality of its own acts and the conclusiveness of 
its actions in so doing. Those who would resist the rights of Congress, in 
this respect because of its assumed inefficiency, are making a direct attack 
upon parliamentary government and have no right to assume for them¬ 
selves the role of protectors of the Constitution. They really base their 
position upon antagonism to representative government and the claim 
of popular incapacity. In fact they sometimes argue that constitu¬ 
tional questions of necessity should be left to the judgment of experts and 
suggest that they offer a field into which the common man or common 
Congressman should not rush. When, however, we find the experts 
definitely and very nearly equally divided upon questions of vital inter¬ 
est to the public, we may believe something more than expert knowledge 
is needed to comprehend the true workings of our national Constitution. 

Another argument which has been made in favor of the court’s 
power is really nothing but an appeal to fear. This was indulged in by an 
eminent and usually very broad minded recent President of the American 
Bar Association who said at a convention of journalists that Congress 
might take away in effect from them liberty of the press and that their 
only protection against such action would be the Supreme Court. This is 
about-as reasonable as it is to say that if the sky falls we may all catch 
larks. When Congress shall undertake to deprive the press of its freedom 
in any large way, we will probably have very little use for courts or for 
Popular Government. 

But it is to be noted that the Supreme Court has not protected the 
press against such side swipes as Congress has given to freedom of the 


68 


press. We have in this country a postal censorship allowed by act of 
Congress which has never been disturbed by the Supreme Court, despite 
the opinions of a minority of that body. (See for example U. S. ex rel. 
etc. v. Burleson, 225 U. S., 407; 65 Law. Ed., 704, with Justices Brandeis 
and Holmes, dissenting.) This exists while a majority of our editors do not • 
seem to be awake to the ultimate danger of such a measure—pronounced 
constitutional by the Supreme Court. 

Others have pointed to the assertions of writers, both lawyers and 
laymen, that the peculiar feature of the American Government and the 
source of its strength was to he found in the power of the courts to 
declare legislative acts unconstitutional. We have elewhere pointed out 
in this report that what really was meant was that the strength of the 
country lay in the power of some body outside of the states themselves to 
pass upon the constitutionality of the acts of State agencies. This func¬ 
tion is with a very considerable degree of success performed by the 
Supreme Court. If its power over acts of Congress were our only salva¬ 
tion, we might inquire why it is that so great a nation as England succeeds 
as admirably as it does without the possession or exercise of anything at 
all analogous in the hands of its judiciary and why we more than England 
should belittle the importance of our legislative bodies. 

Back of all arguments in favor of the power of the courts lies the 
undoubted thought that the people of this country are not to be trusted to 
deal fairly through their representatives w r ith large aggregations of capital. 
There is nothing in the past history of our country to justify this conclu¬ 
sion. Popular rights and public safety should not be retarded or hazarded 
upon such a suspicion. No reason is known why the people of America 
and their representatives under a written Constitution should be less 
trustworthy than are the people of England without a written Constitution. 

REMEDIES HERETOFORE PROPOSED 

It must be apparent from the foregoing that very serious evils have 
resulted from the assumption, whether colorably justified or not,'by the 
Supreme Court of the United States of the power to declare acts of Con¬ 
gress unconstitutional, and that in the future, as in the past has been the 
case, its continued exercise may at any moment involve the country in 
serious dangers. We will not forget the example afforded us by the refusal 
of the Parliament of Paris to register the edicts of Turgot it considered 
unconstitutional, the Dred Scott case, and the scarcely less momentous 
cases pertaining to this jurisdiction which we have discussed. We have, 
on the othei hand, the acknowledged existence of the power of the Supreme 
Court of the United States, as to the legislation of states, coupled with the 
fact that while this power has, in certain instances, been carried to an un¬ 
justifiable extent, nevertheless in others it has been absolutely necessary 
for the presei\ation of the Union as a solid nation. These conditions have 
excited the attention of publicists, and the difficulties call for a possible 
solution. 







V 


69 


The Recall of Judges 

' As a remedy several states of the Union, including, among others, 
California, Oregon and Arizona, have extended the recall to include judi¬ 
cial officers. None of the evil effects prophesied by lawyers and judges in 
opposing this suggestion have accompanied its adoption, but it is incon¬ 
venient, to say the least, so far as the Federal judiciary is concerned, and, 
further, it comes as it were after the fact, andjs, therefore, not complete, 
as subsequent courts are not prevented from following in the footsteps 
even of the recalled officer. No principle can be settled by the recall, 
although through its instrumentality the unwisdom of particular lines of 
conduct in special instances may be demonstrated to the judiciary. 

Election of Judges 

Many of those who oppose the exercise of the present control over 
legislation indulged in by courts entertain the idea that relief is to be found 
in the simple expedient of the election of judges and applying this to our 
federal judiciary. It is difficult to see the ground for this belief. Certainly 
it is not sustained by anything in the history of the courts. Elected judges 
in the several states have declared legislative acts to be unconstitutional 
with no less frequency than the Supreme Court of the United States has 
acted similarly with regard to the laws passed by Congress. The fear of 
accountability at the end of their terms has meant little to them and would 
mean no more to an elected federal judiciary. The essence of the situa¬ 
tion is that men placed in a position of uncontrolled power are just about 
equally likely to abuse it, or perhaps we should say equally liable to be 
influenced by their surroundings, whether elected or appointed. This opin¬ 
ion is likewise entertained by very acute observers. For instance Dean 
J. P. Hall in Bulletin X, American Judicature Society, says: 

“In fact so far as I can determine from a somewhat careful survey of the mat¬ 
ter the circumstances that judges have been elected or that they have been appointed 
can not be shown to have had any appreciable direct bearing upon their decision of 
questions of constitutional polity.” 

Recall of Decisions 

This proposition, as forcefully advocated by the late ex-President 
Roosevelt, is subject to a degree to the comment made as to the recall of 
judicial officers. At best it affords a clumsy way of securing the popular 
repeal of a judicial declaration, but it does not alter the law as applied to 
the parties in the case, the principle of which it is sought to change. In 
a sense it has received practical sanction by the voters of the State of 
New York with regard to the principles enunciated in Ives v. South Buf¬ 
falo Railway Company (210 N. Y., 231, 34 L.R.A. (N.S.) 162) and of the 
states of the Union through the adoption of the Income Tax Amendment of 
the Federal Constitution. When, however, we consider that in the course of 
a given year a number of statutes may be declared unconstitutional by the 
highest court of a state or of the United States, we can understand that 


70 


continually recurring appeals to the people to correct the supposed eirors 
of the judiciary* will not be popular or in the end very effective. Further¬ 
more, it is to be remarked that at best the idea of the recall of decisions 
was never intended to apply to more than the decisions of a state court, and 
that objections to this course of action nationally would be almost insuper¬ 
able. 


Stare Decisis * 

Some lawyers of prominence and ability have urged as a remedy that 
by constitutional amendments the judicial doctrine of stare decisis (the 
principle which compels judges in later cases to accept the attitude of 
authorized tribunals once expressed and follow their declarations) should 
be abolished, and have believed that, this course once taken, this artificial 
barrier would no longer prevent a later court with fuller thought and infor¬ 
mation from correcting the errors of an earlier one, but we have no assur¬ 
ance for believing that the errors would be so corrected. Stare decisis is 
not a doctrine which can be abolished, in my judgment, by a constitutional 
amendment. It is not a concrete material fact, but an attitude of mind 
which judges, if so disposed, may adhere to as well without as with a 
constitutional amendment, and which will cling to them, consciously or un¬ 
consciously, whatever may be contained within the lines of a written con¬ 
stitution. , 

Propositions in Congress 

(A) A proposition introduced in Congress some years ago provided 
as follows: 

“That from and after the passage of this act Federal judges are forbidden to 
declare any act of Congress unconstitutional. 

“No appeal shall be permitted in any case in which the constitutionality of an 
act of Congress is challenged, the passage by Congress of any act being deemed con¬ 
clusive presumption of the constitutionality of such act. 

“Any Federal judge who declares any act passed by the Congress of the United 
States to be unconstitutional is hereby declared to be guilty of violating the constitu¬ 
tional requirement of ‘good behavior’ upon which his tenure of office rests and shall be 
held by such decision ipso facto to have vacated his office. 

“Sec. 2. That the President of the United States is hereby authorized to nomi¬ 
nate a successor to fill the position vacated by such judicial officer.” 

I can not believe that this would solve the difficulty, as it covers but 
part of the ground, and that doubtfully. 

To begin with, the proposition is limited, of necessity, perhaps, in 
application to ‘the action of federal judges, leaving untouched the action 
of state judges in passing upon federal statutes. It penalizes any federal 
judge declaring an act passed by the Congress of the United States to be 
unconstitutional. This proposition would have to pass the scrutiny of the 
Very judiciary it is designed to limit, and on one theory or another would 
be held unconstitutional. Besides, to threaten with a club does not go to 
the root of the matter. The bill further proposes to prohibit an appeal, 


71 


presumably to the Supreme Court of the United States, in any case in 
which the constitutionality of an act of Congress is challenged, the enact¬ 
ment by Congress being deemed conclusive presumption of such constitu¬ 
tionality. While the courts would doubtless deny, in view of their past 
histoiy and undisputed exercise of powers over legislation extending over 
more than one hundred years, that any conclusive presumption could be 
indulged in as against their action, it is feasible to prohibit appeals which 
raise the question of constitutionality from going to the Supreme Court of 
the United States, as the Supreme Court only possesses such appellate 
jurisdiction as Congress gives it. the effect of this limitation was fully 
recognized in the McCardle case to which we have had occasion heretofore 
to make reference. But prohibiting appeals would not control the lower 
courts. 

It might further be added that a declaration by one Congress as, for 
instance the one passing the act, as to good behavior being violated by 
holding an act of Congress unconstitutional, will not be binding upon 
another Congress, while there may be question whether a judge can be 
ousted from office for want of good behavior except by regular impeach¬ 
ment proceedings. Such step as we may take, therefore, must be more 
complete and fundamental than is thus proposed. 

(B) In the last House of Representatives Mr. McSwain introduced 
a bill to the following effect: 

“That in any case heard and decided by the Supreme Court of the United States 
where is drawn in question a statute of any State of the United States on the ground 
that said statute is charged to be in conflict with the Constitution of the United States, 
such statute of a State shall not be held and declared to be in conflict with the Con¬ 
stitution of the United States, or any amendment thereto, or treaty made, or Act of 
Congress passed, in pursuance thereof, unless at least seven members of said court 
decide, agree, and concur in the opinion that such statute is so unconstitutional, null, 
and void.” 

This was introduced as a bill regulating procedure in the Supreme 
Court of the United States. It will be noted that this bill undertakes by 
law to limit the powers of the Supreme Court on constitutional questions 
involving State statutes. Its constitutionality may be very gravely doubted. 
It is not at all probable that the Supreme Court of the United States would 
recognize any limitation of its authority coming from any source other than 
the Constitution of the United States. This particular power having been 
placed in the hands of the Supreme Court by the Constitution itself could 
scarcely be qualified except through the Constitution. 

(C) Senator Borah introduced a bill to the following effect: 

“That in all suits now pending, or which may hereafter be pending, in the 
Supreme Court of the United States, except cases affecting ambassadors, other public 
ministers, and consuls and those in which a State shall be a party, where is drawn in 
question an Act of Congress on the ground of repugnancy to the Constitution of the 
United States, at least seven members of the court shall concur before pronouncing 
said law unconstitutional.” 

Much the same objection exists to this bill as to that of Mr. McSwain. 
The Supreme Court being thoroughly convinced df its right under the 


\ 


72 


Constitution to declare unconstitutional an act of Congress on the ground 
of repugnancy to the Constitution, any attempted limitation of its power by 
mere law would not be recognized and would lead to inevitable conflict as to 
authority between Congress and the Court. 

The further objection exists as to this bill as well as of Mr. McSwain 
that it seems to assume some magic in the number seven, ignoring the fact 
that it is quite within the power of Congress at some later time to increase 
the membership of the Supreme Court to a larger figure, say thirteen. In 
such event seven members might declare an act of Congress unconstitu¬ 
tional while six were of the opposing opinion. In this case the whole 
purposes of either law would fail, or renewed congressional action would 
be necessary. 

(D) Mr. Frear of Wisconsin proposed the following as an amend¬ 
ment to the Constitution. 

“Section 1. Congress shall have power to determine how many members of the 
Supreme Court shall join in any decision that declares unconstitutional, sets aside, or 
limits the effect of any Federal or State law, and may further provide by law for 
the recall without impeachment proceedings of any judge of the court, or a review 
and setting aside of any such court decision, providing that not less than two-thirds 
of the vote of both Houses shall agree to such recall or review.” 

The first clause directing that “Congress shall have power to determine 
how many members of the Supreme Court shall join in any decision that 
declares unconstitutional, sets aside, or limits the effect of any Federal or 
State law” may not perhaps itself be subject to criticism except that no 
limitation of power of the inferior judiciary is proposed by it. The rest of 
the proposed act is subject to criticism for the reason that it gives no defin¬ 
ite meaning to the words “recall” and “review.” These words in this con- 
’ nection have no legal significance. For instance, who may recall? What 
is the effect of'a recall upon the person recalled? Who is to review and 
in what manner? 

Other suggestions will be considered in connection with the recom¬ 
mendations which I shall now proceed to make. 

SUGGESTED REMEDIES 

If I am correct in what has so far been written the state judiciary and 
the Judiciary of the United States should be placed upon one common 
basis, and my first proposition would be: 

The Supreme Court of the United States and state and national courts 
generally shall have no pozver to pass upon the constitutionality of con¬ 
gressional enactments, and the courts of the respective states shall have no 
power to pass upon the constitutionality of the enactments of their respec¬ 
tive legislatures or under popular initiative; except so far as they are 9 
contrary to the National Constitution or to national laws or treaties, which 
are given contitutional recognition. 

The arguments in favor of this proposition have been sufficiently 
developed in what has .already been said. Some of the counter-arguments 
may be briefly referred to. 





73 


/ 















It is urged that this proposition would place too great a power in the 
hands of the legislative bodies—a power which might be exercised by them 
to the prejudice of public and private rights. To this it is to be answered 
that the proposition is not without precedent; that, judged by their stand¬ 
ards of principle which in their essence, whatever may be their special forms, 
do not so far differ from our own as to make their experience inapplicable, 
England with an unwritten constitution, and France, Germany and Swit¬ 
zerland with written constitutions, have not suffered from the fact that in 
none of them can the courts review or question their highest legislative 
acts, although in Germany and Switzerland (federated governments) the 
highest courts may review the constitutionality of the acts of inferior 
governments. 

It is urged that, though it be admitted that on every great occasion 
the Supreme Court has failed to reach a safe determination on large public 
questions as touching their constitutionality, nevertheless, the existence of 
the power has restrained Congress and the several legislatures from indulg¬ 
ing in many other things which would have been clearly and pronouncedly 
violative of the constitution; that, for instance, Congress might declare 
itself to be the sole fountain of government and entirely reverse our con¬ 
stitutional forms were it not restrained by fear of Supreme Court action. 

This is one of the things which we may regard as conceivable but pre¬ 
senting no objection of practical importance. Today the President is com¬ 
mander-in-chief of the army and navy. We might as well assume that 
because he possesses this enormous power he will employ it to constitute 
himself a dictator. The fact is that we have no right to believe that a 
majority of Congress, or, if the President withholds his approval, two- 
thirds of both houses, will unite deliberately to set aside a constitution 
which has been adopted by and received the acquiescence of the people for 
more than one hundred and thirty years. 

There are certain other assumptions which we have a right to make 
which may be indulged in to support the belief that the suggestion now 
made would result in probably better observance of the constitution by the 
legislature than now is practiced. Today Congress and the state legisla¬ 
tures are tempted to pass unconstitutional acts on the theory that there is 
no telling what the Supreme Court may say about them and that the final 
responsibility rests with that organ of the government. Responsibility 
breeds care, and in the United States increasing care will be exercised in 
the preparation and passing of measures once Congress or a legislature 
shall thoroughly feel that there is to be no shifting of responsibility for 
wrongful acts. The present tendency of legislation, even under the sys¬ 
tem, or want of it, existing in the United States, is toward the perfection 
of legislation before its enactment. This is illustrated by the growth of 
legislative reference bureaus in half a dozen or more states. 

My second proposition is: 

'The Supreme Court shall retain its jurisdiction to declare unconstiti- 
tional acts of executive and inferior judicial powers in excess of legislative 




74 


* 




authority and like jurisdiction over acts of state legislatures or initiated 
laws, including acts of commissions; and the state courts shall possess and 
retain power to pass upon the constitutionality of the acts o\ counties, 
cities, towns and administrators of whatever nature. 

Our very cohesiveness as a nation depends upon the existence of some 
national reviewing authority covering the instrumentalities subordinate to 
the central power, this alike in the interest of good order and good admin¬ 
istration. Within the radius of its jurisdiction a like reviewing authority 
must exist within the several states. We have found it impracticable 
nationally that Congress should assume and exercise this power, and for 
other reasons, though not of the same marked importance, the general rule 
may properly extend to the states. 

My third proposition is: 

That the Supreme Court of the United States, in the exercise of its 
jurisdiction to declare an act of the state legislature or initiated law or of 
any state or Federal agency including the judiciary, to he unconstitutional, 
shall only do so by the acquiescence of considerably more than a bard 
majority of its members; that, for instance, three-fourths of the entire 
membership of the court should concur to such end, and the like require¬ 
ment shall hold as to the highest courts of the states. 

This proposition finds a certain precedent in the constitution of Ohio, 
adopted in 1912, and which reads as follows: 

“Ohio Constitution, Article IV.—Judicial—Sec. 2. . . . No law shall be held 
unconstitutional and void by the Supreme Court without the concurrence of at least 
all but one of the judges, except in the affirmance of a judgment of the court of 
appeals declaring a law unconstitutional and void.” . . . 

Its justification is to be found, if any were needed, in numberless 
decisions of the Supreme Court of the United States. Repeatedly we have 
been told by the Supreme Court that -the power to declare an act of Con¬ 
gress unconstitutional is a power of such gravity that it should only be 
exercised where there is no reasonable doubt of its application; that all 
questions of doubt were to be solved in favor of the legislative act. After 
having declared this principle, so salutary if the Supreme Court were to 
exercise the power at all, the most important state and national laws have 
been struck down by a vote of five to four. We are left to conceive if we 
may that a constitutional proposition is free from doubt when five men 
only out of nine—a bare majority— are able to unite in saying that uncon¬ 
stitutionality exists. In the case of jury trials, twelve men upon a question 
of fact involving small amounts of property are required to unite. Why a 
materially different rule should be adopted as to a question of fundamental 
law is not readily apparent. We have fully discussed this elsewhere. 

A like condition exists in North Dakota where a constitutional 
amendment was adopted in 1917 reading as follows: 

“Sec. 89. The Supreme Court shall consist of five judges, a majority of whom 
shall be necessary to form a quorum or pronounce a decision, but one or more of said 
judges may adjourn the court from day to day or to a day certain, provided, however, 


\ 


75 

that in no case shall any legislative enactment or law of the State of North Dakota 
be declared unconstitutional unless at least four of the judges shall so decide.” 

I shall next proceed, departing, perhaps, from the strict letter of my 
theme, to say that: 

Coupled with the foregoing reforms, I think there should go hand in 
hand the initiative and referendum, proportional representation and the 
preferential ballot. 

Without these reforms our constitutional governments, including also 
methods of attaining justice, will lack much of completeness. 

We need the initiative and referendum so that legislative sins, both of 
omission (corrected by the initiative) and commission (corrected by the 
referendum) may be promptly rectified. 

The remark of Bryce (The American Commonwealth, Chapter 23) 
that, “The Swdss habit of constantly recurring to popular vote (the initi¬ 
ative and referendum) makes it less necessary to restrain the legislature 
by a permanently enacted instrument,” has ample justification. 

We need proportional representation for another reason and to meet 
another objection urged by those who are devoted to the preservation of 
the powers now held by the judiciary. It is insisted that if the legislature 
be unrestricted by judicial action, there is danger of oppression by a 
numerical majority controlling in the legislature. While the danger urged 
is, in my judgment, largely theoretical, and while the makers of the objec¬ 
tion ignore the fact that at present, through judicial action, the rights 
of the majority are repeatedly held subservient to those of a very small 
minority, even this colorable objection should be met as far as possible. 
Under proportional representation any considerable section of the com¬ 
munity, whether it be set apart by wealth or religion or color, or any other 
of the factors which serve to divide human life, may, by uniting, send its 
share of representatives to the legislature to be present to protect the 
interests and well-being of those for whom they stand, and the danger of 
oppressive legislation will be minimized to the vanishing point. At the 
same time, through the preferential ballot, we may obtain, in executive 
capacities, men who represent the majority of the people, a condition not 
now prevailing when often the President of the United States, to say 
nothing of the mayor of a town, may be the choice of the minority of his 
constituents. 

It has seemed impossible within a short compass to answer the ques¬ 
tions put to me by the Executive Council of the Federation, and even if a 
formal answer might have been quickly given, it has been necessary to 
justify the faith within us. This I have honestly sought to do, and a study 
of the question has convinced me that the Executive Council now .has 
before it one of the gravest fundamental questions with which it will have 
to deal—the preservation of truly democratic government against what 
has often been called “Aristocracy of the Robe.” 

Respectfully submitted. 

JACKSON H. RALSTON. 

Washington, D. C., October, 1923. 









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77 


APPENDIX A. 


ACT | OF CONGRESS AND STATE LEGISLATURES DECLARED UNCON¬ 
STITUTIONAL BY THE UNITED STATES SUPREME COURT 
UP TO AND INCLUDING OCTOBER TERM, 1922* 


ACTS OF CONGRESS 

ADAIR v. UNITED STATES, 208 U. S., 161; Law Ed., 52, 436 (1908). Invali¬ 
dates act oi Congress prohibiting discharge from interstate commerce service 
because of membership in labor organization. Justices Holmes and McKenna 
dissent. 

ADKINS, ET AL, MINIMUM WAGE BOARD v. CHILDREN’S HOSPITAL, 
dec. April 9, 1923. D. C. minimum wage law held unconstitutional as interfering 
with liberty of citizen under U. S. Constitution, Amendment No. 5. Justices 
Taft, Sanford and Holmes dissent. 

ALICIA, THE, 7 Wall. 571; 19 Law Ed., 84. Order of transfer to Supreme Court 
in prize cases held unconstitutional. 

BAILEY v. DREXEL FURNITURE CO., 259 U. S., 20; 66 Law Ed., 817. Held 
Child Labor Tax law unconstitutional. Justice Clarke dissents. 

BALDWIN v. FRANKS, 120 U. S., 678; 30 Law Ed., 766. Limiting application of 
statutes under treaties. Justices Field and Harlan dissent. 

BOYD v. UNITED STATES, 116 U. S., 616; 29 Law Ed., 746. Act establishing 
forfeiture unconstitutional 

BUTTS v. MERCHANTS, ETC., TRANS. CO., 230 U. S., 126; 57 Law. Ed., 1422. 
Civil rights act unconstitutional. 

CALLAN v. WILSON, 127 U. S., 540; 32 Law Ed., 223. Right of trial by jury. 

CIVIL RIGHTS CASES, 109 U. S., 3; 27 Law Ed., 836. Certain civil rights not 
under 13th or 14th Amendments. Justice Harlan dissents. 

COLLECTOR v. DAY, 11 Wallace, 113; 20 Law Ed., 122. Congressional taxes on 
salary of judicial officer held unconstitutional. Justice Bradley dissents. 

COUNSELMAN y. HITCHCOCK, 142 U. S., 547; 35 Law Ed., 1110 (1892). 
Limits application of Section 860, R. S., as to compelling man to give evidence 
against himself contrary to the Fifth Amendment. 

COYLE v. SMITH, 221 U. S., 559; 55 Law Ed., 853. Limitation of power of Con¬ 
gress in admitting States to Union. Justices McKenna and Holmes dissent. 

EISNER v. MACOMBER, 252 U. S., p. 189. Stock dividend provisions of Revenue 
Act of 1916 held unconstitutional. Justices Holmes, Day, Brandeis and Clarke 
dissent. 

EVANS v. GORE, 253 U. S., 245; 64 Law Ed., 887. So much of the Income Tax 
Law as provided for tax on judges’ income held unconstitutional. Justices Holmes 
and Brandeis dissent. 

FAIRBANK v.- UNITED STATES, 181 U. S., 283,; Law Ed., 45, 862 (1901). 
Invalidates Federal stamp tax on foreign bill of lading. Justices Harlan, Gray, 
White and McKenna dissent. 

FERREIRA v. UNITED STATES, 13 How., 40; 14 Law Ed., 42. Refusal to 
perform non-judicial function. 

GARLAND, EX PARTE, 4 Wallace, 333; 18 Law Ed., 366. Test act held uncon¬ 
stitutional as in nature of bill of attainder. Justices Miller, Swain and Davis 
dissent. 

HAMMER v. DAGENHART, 247 U. S., 251; Law Ed., 62, 1101 (1918). Invali¬ 
dates Federal Child Labor Law. Justices Holmes, McKenna, Brandeis and 
Clarke dissent. 

* The case of Yale Todd referred to in note to the Ferreira case, 13 Howard, 40, is 
not included as insufficiently clear to be an authority, and Kilbourn v. Thomp¬ 
son, 103 U. S., 168, and Marshall v. Gordon, 243 U. S., 521, are included, though 
strictly referring only to acts of the House of Representatives. 




78 


HEFF, in re, 197 U. S., 488; 49 Law Ed., 848. Power of Congress over Indians 
exhausted by allotment. Justice Harlan dissents. 

HEPBURN v. GRISWOLD, 8 Wallace, 605; 19 Law Ed., 513. Declaring Legal 
Tender Act unconstitutional, but reversed on rehearing, justices Miller, Swayne, 
and Davis dissented. 

HILL v. WALLACE, Secy, of Agriculture, 259 U. S., 44; 66 Law Ed., 822. Holds 
Futures Trading Act of August 24, 1921, unconstitutional as interference with 
rights reserved to States under Tenth Amendment. 

HOWARD v. ILLINOIS CENTRAL R. R. CO., 207 U. S., 463; Law Ed., 52, 297 
(1908). Declares invalid as applied to interstate commerce provisions of Fed¬ 
eral Employers’ Liability Act. Justice Day concurred in Chief Justice White’s 
opinion, and Justice Peckham in result. 

HODGES v. UNITED STATES, 203 U. S., 1; 51 Law Ed., 65. Limitation of 
power of Congress under 13th Amendment. Justices Harlan and Day dissent. 

JAMES v. BOWMAN, 190 U. S., 127; 47 Law Ed., 979 (1903). Act creating 
offense really against State can not be limited by construction to save consti¬ 
tutionality. Justices Harlan and Brown dissent. 

JUSTICES v. MURRAY, 9 Wallace, 274; 19 Law Ed., 658. Act affecting removal 
of causes violative of 7th Amendment to Constitution. 

KELLER v. UNITED STATES, 213 U. S., 138; 53 Law Ed., 737 (1909). In¬ 
validates act punishing harboring alien woman for immoral purposes within three 
years after her arrival. Justices Holmes, Harlan and Moody dissent. 

KILBOURN v. THOMPSON, 103 U. S., 168; 26 Law Ed., 377 (1881). Court 
holds House of Representatives not vested with all powers over contempt which 
belonged to House of Commons. 

KIRBY v. UNITED STATES, 174 U. S., 47; Law Ed., 43, 890 (1899). Declares 
invalid act of Congress allowing judgment of conviction against principal felons 
to be evidence in prosecution against receiver as to property stolen from the 
United States. Justices Brown and McKenna dissented. 

KNICKERBOCKER ICE CO. v. STEWART, 253 U. S., 149; 64 Law Ed., 834. 
Act of Congress extending State Workmen’s Compensation Laws in effect to 
workmen under admiralty and maritime jurisdiction held unconstitutional. (This 
was intended to correct Southern Pacific Company v. Jensen, 244 U. S., 205). 
Justices Holmes, Brandeis, Clarke and Pitney dissent. 

LOUISIANA v. MISSISSIPPI, 202 U. S., 1; 50 Law Ed., 913 (1906). Denies the 
right of Congress to change fixed boundaries of State after its admission to the 
Union. 

MARBURY v. MADISON, 1 Cranch, 137. Act of Congress extending jurisdiction 
of Supreme Court held unconstitutional. 

MARSHALL v. GORDON, 243 U. S., 521; 61 Law Ed., 881 (1917). Denies power 
of House of Representatives to deal directly bv way of contempt. 

MONONGAHELA NAV. CO. v. UNITED STATES, 148 U. S., 312; 37 Law 
Ed., 463 (1893). Taking franchise without payment by act. of Congress treated 
as taking of private property without due compensation. 

MUSKRAT v. UNITED STATES, 219 U. S., 348; Law Ed., 55, 247 (1911). In¬ 
validates act of Congress referring question to court for determination not 
presented in a case or controversy. 

NEWBERRY v. UNITED STATES, 256 U. S., p. 232. Act of Congress governing 
Senatorial Primaries held unconstitutional. Justices White, Pitney, Brandeis 
and Clarke dissent. 

POLLOCK v. FARMERS’ LOAN & TRUST CO., 158 U. S., 601; Law Ed., 39, 
1108 (1895). Declares invalid Federal income tax law of 1894. Justices Harlan, 
Brown, Jackson and White dissent. (Reverses on rehearing in part same case 
reported in 157 U. S., 429; 39 Law Ed., 759.) . 

PUBLIC UTILITIES COM. v. POTOMAC ELEC. POWER CO., October 
term, 1922. Adv. Op. 512, dec. April 9, 1923. Act of Congress gave Supreme 
Court legislative function and to that extent unconstitutional. 

RASMUSSEN v. UNITED STATES, 197 U. S., 516; 49 Law Ed., 862 (1905). 


79 


Act allowing six jurors only in Alaska misdemeanor cases held void. Justices 
Harlan and Brown separately concur. 

if'F, c ’‘ SANFORD, 19 Howard, 393; 15 Law Ed., 691. Missouri compromise 
ield void. Justices McLean and Curtis dissent; Justice Nelson gives no opinion 
as to constitutionality. 

TH AMES & MERSEY INS. CO. v. UNITED STATES, 237 U. S., 19; Law Ed., 
jJ, oZl (1915). Invalidates stamp tax on policies of marine insurance on foreign 
exportations imposed by congressional act. 

TRADE-MARK CASES, 100 U. S., 82; Law Ed., 25, 550. Act void as applying to 
acts beyond Congressional jurisdiction. 

UNITED STATES v. COHEN GROCERY CO., 255 U. S., 81. Section 4 of Food 
Control Act held contrary to Fifth and Sixth Amendments as to due process 
of law, and that accused should be informed of the nature and cause of accusa¬ 
tion. Justices Brandeis and Pitney dissent. 

UNITED STATES v. DE WITT, 9 Wallace, 41; 19 Law Ed., 593. Law of Con¬ 
gress affecting petroleum oil held restricted to United States territory only; not 
affecting State jurisdiction. 

UNITED STATES v. EVANS, 213 U. S., 297; 53 Law Ed., 803. Delegating non¬ 
judicial function to Court. 

UNITED STATES v. FOX, 97 U. S., 670; 24 Law Ed., 538. An offense in bank¬ 
ruptcy subject to State regulation only. 

UNITED STATES 7 ;. HVOSLEF, 237 U. S., 1; 59 Law Ed, 813 (1915). Invali¬ 
dates stamp tax on charter parties to foreign ports by Congressional act. 

UNITED STATES v. HARRIS, 106 U. S, 629; 27 Law Ed, 290. Act relating to 
conspiracies depriving persons of equal protection of laws too broad. Justice 
Hsrlcin dissents 

UNITED STATES v. KLEIN, 13 Wallace, 128; 20 Law Ed, 519. Provision of 
act of Congress held ex post facto. Justices Miller and Bradley dissent. 

UNITED STATES v. MORELAND, 258 U. S, 433; 66 Law Ed, 700. Hard 
labor under statute providing for imprisonment in workhouse held unconstitutional 
for want of Grand Jury. Justices Brandeis, Taft iind Holmes dissent. 

UNITED STATES v. RAILROAD CO, 17 Wallace, 322; 21 Law Ed, 597. Act 
taxing bond interest unconstitutional as to municipal corporations. Justices 
Clifford and Miller dissent. 

UNITED STATES v. REESE, 92 U. S, 214; 23 Law Ed, 563. Act beyond limits 
15th Amendment. Justice Hunt dissents. 

WONG WING v. UNITED STATES, 163 U. S„ 251; 41 Law Ed, 140 (1896). 
Declares unconstitutional act of Congress permitting imprisonment at hard labor 
of Chinese ordered expelled from the country. Mr. Justice Field dissents in part. 


ACTS OF STATE LEGISLATURES AND AUTHORITIES 

ADAMS EXPRESS CO. v. CRONINGER, 226 U. S, 491; ICy. Interstate com- 
nierce 

ADAMS EXPRESS CO. v. KENTUCKY, 214 U. S, 218; Law Ed, 53, 972 (1909). 
Declares-invalid application of Kentucky statute to transportation of liquor by 
express company from State to State. Justice Harlan dissents. 

ADAMS EXPRESS CO. v. KENTUCKY, 238 U. S, 190; Kentucky Stat, sec. 
2569a. It is difficult to determine whether this case should be classed as deciding 
a question of statutory construction or of constitutional law. . . 

ADAMS EXPRESS CO. v. NEW YORK, 232 U. S, 14; N. Y. Municipal Ordi¬ 
nance Interstate commerce. 

ADAMS v TANNER, 244 U. S, 590; Law Ed, 61, 1336 (1917). Declares invalid 
employment agency laws of Washington. Justices Holmes, McKenna, Brandeis 

ALLEN ^PULLMAN'S PALACE CAR CO., 191 U. S„ 171; Law Ed., 48, 134 
(1908). Tax imposed by Tennessee upon sleeping car company engaged in inter¬ 
state’ traffic, ignoring its character, held void. 


80 




ALLGEYER z/. LOUISIANA, 165 U. S., 580; Law Ed., 41, 835 (1897). Declares 
law of Louisiana as construed in that State unconstitutional as interfering with 
private contract. 

AMERICAN EXPRESS COMPANY v. CALDWELL, 244 U. S. 617. This is a 
controversy concerning Federal and State jurisdiction in fixing express rates, and 
apparently the State law is held unconstitutional in part and constitutional in part. 

AMERICAN MACHINE CO. v. KENTUCKY, 236 U. S., 660; Ky. Stat., 3915, 
3941. Due process of law. 

AMERICAN PUB. CO. v. FISHER, 166 U. S., 464; Law Ed., 41, 1079 (1897). 
Declares invalid territorial (Utah) statute providing for verdict by concurrence 
of nine jurymen in civil trial. 

AMERICAN SMELTING & REFINING CO. v. COLORADO, 204 U. S, 103; 
Law Ed., 51, 393 (1907). Declaring unconstitutional Colorado act exacting from 
foreign corporation doing business there larger license tax than required from 
domestic corporation. 

ASKREN v. CONTINENTAL OIL CO., 252 U. S., 444 N. M. Interstate commerce. 

ATCHISON, TOPEKA & SANTA FE RY. v. O’CONNOR, 223 U. S., 280; Colo, 
laws, 1907, c. 213. Due process of law. 

ATCHISON & SANTA FE RY. v. VOSBURG, 238 U. S., 56; Kans. Laws, 1905. 
Equal protection of laws. 

AUGUST BARTELS v. STATE OF IOWA, and BAHNEY v. OHIO, and PHIL. 
v. OHIO, dec. June 4, 1923, and NEBRASKA DIST. OF EVANGELICAL 
LUTHERN SYNOD v. McKEBIE, dec. June 4, 1923, Adv. Op., 702. Violates 
guaranty of liberty, 14th Amendment. Unanimous except Justice Holmes dis¬ 
sents in Neb. case. 

BAILEY v. STATE OF ALABAMA, 219 U. S., 218; Law Ed., 55, 191 (1911). 
Declares invalid act of Alabama permitting peonage. Justices Holmes and 
Lurton dissent. 

BANK OF COMMERCE v. TENNESSEE, 161 U. S., 133; Law Ed, 40, 645 
(1896). Invalidates revenue act imposing additional tax as impairing State’s con¬ 
tract. Justice White dissents. 

BANK OF MINDEN v. CLEMENT, 256 U. S, 126; la. Laws, 1914, No. 189. Im¬ 
pairing obligation of contract. Justice Clarke dissents. 

BARNITZ v. BEVERLY, 163 U. S, 118; Law Ed, 41, 93 (1896). Declares act of 
Kansas retroactively creating period of mortgage redemption unconstitutional. 

BETHLEHEM MOTORS CO. v. FLYNT, 256 U. S, 421; N. C. Laws, 1917, c. 231. 
Equal protection of laws. Justices Pitney and Brandeis dissent. 

BLAKE v. McCLUNG, 172 U. S, 239; Law Ed, 43, 433 (1898). Declares uncon¬ 
stitutional Tennessee statute giving priority to residents in distribution of assets 
of foreign corporation. Justice Brewer and Chief Justice Fuller dissent. 

BLAKE v. McCLUNG, 176 U. S, 59; Law Ed, 44, 371 (1900). Invalidates statute 
of Tennessee giving priority of assets to local resident. 

BOISE WATER CO. v. BOISE CITY, 230 U. S„ 84; Ida. Municipal Ordinance. 
Obligation of contract. 

BOSTON & ME. R. R. v. HOOKER, 232 U. S, 97. Interstate commerce. Justice 
Pitney dissents. (Mass.) 

BOWMAN v. CONTINENTAL OIL CO, 256 U. S„ 642; N. M. Laws, 1919, c. 93. 

BRADLEY v. LIGPITCAP, 195 U. S, 1; Law Ed, 49, 65 (1904). Invalidates acts 
of Illinois as construed by its Supreme Court as impairing obligation of contract 
by preventing mortgagee from obtaining a deed. Followed in Bradley v. Light- 
cap, 195 U. S„ 24; Law Ed, 49, p. 75. 

BRENNAN v. TITUSVILLE, 158 U. S, 289; Law Ed, 38, 719 (1894). Municipal 
Ordinance imposing tax on solicitors, from out the State held unconstitutional, 
although based on law of Pennsylvania. 

BROOKS-SCANLON CO. v. R. R. COM, 251 U. S„ 396; La. R. R. Com. 
order. Due process of law. 

BRUNMER v. REBMAN, 138 U. S, 78; Law Ed, 34, 862 (1891). Declares invalid 
(Va.) State statute as interference with interstate commerce. 

BUCHANAN v. WARLEY, 245 U. S„ 60; Ky. Due process of law. 


81 


BUCK v. BEACH, 206 U. S., 392; Law Ed., 51, 1107 (1907). Restrains operation 
oi Indiana statute on personal property belonging to non-resident and subject to 
the hpme State. Justices Day and Brewer dissent. 

BUCK STOVE CO. v. VICKERS, 226 U. S., 205; Kans. Gen. Stat, 1905, sec. 1358. 
Interstate commerce. 

BURLESON v. DEMPCY, 250 U. S., 191; Ill. Powers of U. S. Justice Brandeis 
dissents. 

CALDWELL y. NORTH CAROLINA, 187 U. S., 622; Law Ed., 47, 336 (1903). 
Declares invalid city ordinance imposing tax, as interference with interstate 
commerce. 

CARONDELET CANAL CO. v. LOUISIANA, 233 U. S.. 362. Obligation of 
contract. 

CENTRAL OF GEORGIA RY. CO. v. MURPHEY, 196 U. S., 194; Law Ed., 49, 
444 (1905). Declares invalid act of Georgia placing duty on initial carrier of 
tracing freight, etc. 

CENTRAL OF GA. R. CO. t;. WRIGHT, 207 U. S., 127; Law Ed., 52, 134 (1907). 
Declares Georgia State tax law invalid as not affording due process of law. 

CPIARLES1 ON RY. v. VARNVILLE CO., 237 U. S., 597. South Carolina. Inter¬ 
state commerce. 

CHALKER 7 ;. BIRMINGHAM & NW. RY., 249 U. S, 522; Tenn. Laws, 1909/ 
c. 479. 

C. B. & Q. RY. v. MILLER, 226 U. S., 513; la. Interstate commerce. 

C. B. & Q. RY. CO. t/. WIS. R. R. COMM., 237 U. S., 220; Wis. Laws, 1911. Inter¬ 
state commerce. 

CHICAGO, MIL. & ST. P. RY. v. KENNEDY, 232 U. S., 626; S. D. Laws, 1907. 
Due process of law. 

CHICAGO, MIL. & ST. P. RY. 7 ;. MINNESOTA, 134 U. S., 418; Law Ed., 33, 970 
(1890). Due process of law. 

CHICAGO, MIL. & ST. P. RY. v. POLT, 232 U. S., 165; S. D. Laws, 1907, c. 215. 
Due process of law. 

CHICAGO, MIL. & ST. P. R. R. v. WISCONSIN, 238 U. S, 491; Wis. Laws, 
1911, c. 272. Due process of law. Justices McKenna and Holmes dissent. 

CHICAGO, R. I. RY. 7 /. HARDWICK ELEVATOR CO., 226 U. S., 426; Minn. 
Laws, 1917, c. 23. Interstate commerce. 

CHICAGO & NW. RAILWAY CO. 7 /. NYE-SCHNEIDER-FOWLER CO., ad¬ 
vanced sheets Supreme Court Reporter, October term, 1922, p. 55, December 13, 
1922. Act of Nebraska in part unconstitutional as giving excessive attorney’s 
fee against Fourteenth Amendment. 

CHARLES WOLFF PACKING CO. 7 ;. COMMISSION OF INDUSTRIAL RE¬ 
LATIONS OF KANSAS, dec. June 11, 1923, Adv. Op., 756. Deprivation of 
liberty under Fourteenth Amendment. Unanimous. 

CHOCTAW & GULF R. R. v. HARRISON, 235 U. S., 292; Okla. Laws, 1908, 
c. 640. Tax on Federal agency. 

CITIZENS BANK v. PARKER, 192 U. S., 73; Law Ed., 48, 346 (1904). Invali¬ 
dates levy of license tax enacted by law of Louisiana in violation of charter 
rights. Justice Brewer, Chief Justice Fuller and Justice Harlan dissent. 

CITY OF SAN ANTONIO v. SAN ANTONIO PUBLIC SERVICE CO., 265 U. 
S., 547; Law Ed., 65, 777. Court enjoined 5c fare rate as confiscatory and under 
the circumstances contrary to Fourteenth Amendment. 

CLEVELAND C. C. & S. R. CO. v. ILLINOIS, 177 U. S., 514; Law Ed., 44, 868 
(1900). Declares invalid Illinois State statute as interfering with interstate 
commerce. Justices Brewer and Shiras concur. 

CLEVELAND v. CLEVELAND CITY R. CO., 194 U. S., 517; Law Ed., 48, 1102 
09041 Invalidates municipal ordinance affecting rates of fare. Followed in 
Cleveland v. Cleveland E. R. Co., 201 U. S., 520; 50 Law Ed., 854. 

CLEVELAND ELEC. RY. CO. CLEVELAND, 204 U. S., 116; Law Ed., 51, 
399 (1907) Invalidates municipal ordinance allowing another company to take 
property of said railway company in streets at expiration of franchise. 


/ 


82 

CLYDE STEAMSHIP CO. v. WALKER, 244 U. S., 255, N. Y. Admiralty. Jus¬ 
tices Holmes, Pitney, Brandeis and Clarke dissent. 

COE v. ARMOUR FERTILIZER WORKS, 237 U. S., 413;' Fla. Gen. Stat., 1906. 
Due process of law. 

COLLINS v. KENTUCKY, 234 U. S., 634; Ky. Const. 198, Laws 1906, c. 117, Laws 
1908, c. 8. Due process of law. 

COLLINS v. NEW HAMPSHIRE, 171 U. S., 30; Law Ed., 43, 60 (1898). De¬ 
clares invalid New Hampshire statute as interfering with interstate commerce. 
Justices Harlan and Gray dissent. 

COLUMBIA RAILWAY, GAS & ELEC. CO. v. SOUTH CAROLINA, October 
term, 1922, Adv. Op. 294, S. Ct. Rep. 306, Vol. 43, dec. Feb. 19, 1923. Declares 
South Carolina statute inoperative as impairing obligation of contract. 

CONNOLLY v. UNION SEWER PIPE CO., 184 U. S„ 540; Law Ed., 46, 679 
(1902). Invalidates provision of Illinois act excepting agricultural products and 
live stock in the hands of producers. Justice McKenna dissents. 

COPPAGE v. KANSAS, 236 U. S., 1; Kans. Laws, 1903, c. 222. Due process of 
law. Justices Holmes, Day and Hughes dissent. 

LOTTING v. GODARD, 183 U. S., 79; Law Ed., 46, 92 (1901). Invalidates Kansas 
statute fixing compensation to stock yards without reference to essential elements 
of cost. Justices Holmes, Gray, Brown, Shiras, White and McKenna concurred 
in result. 

COVINGTON & CINCINNATI BRIDGE CO. v. KENTUCKY, 154 U. S., 204; 
Law Ed. 38, 962 (1894). Declares Kentucky law fixing bridge rates between 
Kentucky and Ohio unconstitutional. Chief Justice Fuller, Justices Field, Gray 
and White concur separately. 

COVINGTON & LEXINGTON T. R. CO. ,v. SANDFORD, 164 U. S., 578; Law 
Ed., 41, 560 (1896). Declares unconstitutional Kentucky act establishing un- 

rpQcntnnlp nf rof pc 

COVINGTON v. SOUTH COVINGTON ST. RY. CO., 246 U. S„ 413; Ky. 
Municipal ordinance. Due process of law. Justices Clarice and Brandeis dissent. 

CRENSHAW v. ARKANSAS, 227 U. S., 389; Ark. Laws, 1909, No. 97. Interstate 
commerce. 

CRETCHER v. KENTUCKY, 141 U. S., 47; Law Ed., 35, 649 (1891). Declares 
statute of Kentucky imposing license on express agents void. Chief Justice 
Fuller and Justice Gray dissent. 

CREW LEVICK CO. v. PENNSYLVANIA, 245 U. S, 292; Pa. Laws, 1899, p. 184. 
Interstate commerce. 

DAHNKE-WALKER CO. v. BONDURANT, 257 U. S., 282; Ky. Stat., 1915. 
Interstate commerce. Justices Brandeis and Clarke dissent. 

DAKOTA CENT. TEL. CO. v. SOUTH DAKOTA, 250 U. S., 153; S. D. Federal 
powers. Justice Brandeis dissents. 

DAVIS v. VIRGINIA, 236 U. S., 697; Va. Interstate commerce. 

DAVIS, DIRECTOR GENERAL, v. FARMERS’ CO-OPERATIVE EQUITY 
CO., May 21, 1923; 43 S. C. Rep., p. 556. Minnesota Statute as to certain 
service of process held unconstitutional as interference with Interstate commerce. 

DARNELL ET AL v. MEMPHIS, 208 U. S., 113; Law Ed., 52, 413 (1908). In¬ 
validates tax on property within the state product of the soil of other States, 
like products in Tennessee being exempted, being imposed under constitution and 
l aws Tennessee 

DELAWARE, LACKAWANNA & WESTERN RY. CO. v. PENNSYLVANIA, 
198 U. S., 341; Law. Ed., 49, 1077 (1905). Invalidates Pennsylvania law includ¬ 
ing in basis of taxation value of coal mined, but situated in other States awaiting 
sale. Chief Justice Fuller dissents. 

DENVER v. DENVER UNION WATER CO., 246 U. S., 178; Colo. Municipal 
ordinance. Due process of law. Justices Holmes, Brandeis and Clarke dissent. 

DETROIT v. DETROIT CITIZENS’ STREET RY. CO., 184 U. S., 368; Law 
Ed., 46, 592 (1902). Invalidates ordinance affecting rate of charges for fares 
without company’s consent. 


i 


83 


DETROIT UNITED RY. v. DETROIT, 248 U. S„ 429; Mich. Municipal Ordi- 

nTT'TTorvrV iTVTTr C n S r. 0 v ^ aw * Justices Clarke, Holmes and Brandeis dissent. 

DETRO IT UNITEp RY. v. MICHIGAN, 242 U. S„ 238; Mich. Laws, 1905. 

TMnVrr-Hf atl0 T contra ct. Justices Clarke and Brandeis dissent. 

DEWEL v. DES MOINES, 173 US., 193; Law Ed., 43, 665 (1899). Invalidates 

P ermi tting personal judgment against nonresident owner of property. 

DOBBINS V. LOS ANGELES, 195 U. S„ 222; Law Ed., 49, 169 (1904) Invali- 
dates municipal ordinance changing character of territory after a prior ordinance 
had been acted upon. 

COZIER v. ALABAMA, 218 U. S., 124; Law Ed., 54, 965 (1910). Declares invalid 
Alabama State imposing license tax, as interference with interstate commerce. 

DULUTH & IRON RANGE R. CO. v. ST. LOUIS COUNTY, 179 U. S., 302; 
Law Ed., 45, 203 (1900). Impairing obligation of contracts by use of taxing 
power. Chief Justice Fuller and Justices Brewer, Shiras and Peckham concur 
in the result. 

ENVIEN v. UNITED STATES, 251 U. S., 41; Law Ed., 64, 128. Holds invalid 
State disbursement of funds derived from public lands as violation of enabling 
set 

ERIE R. R. v. NEW YORK, 233 U. S., 671; N. Y. Laws, 1907, c. 627. Interstate 
commerce. 


ERIE R. R. CO. v. WINFIELD, 244 U. S., 170; N. J. Laws, 1911, c. 95. Interstate 
commerce. Justice Brandeis and Clarke dissent. 

ETTER t>. TACOMA, 228 U. S.. 148; Wash. Laws, 1909, c. 80. Taking of prop¬ 
erty without compensation. 

EUBANK v. RICHMOND, 226 U. S., 137; Va. Laws, 1908, c. 349. Due process 
of law. 

EUREKA* PIPE LINE CO. v. HALLANAN. 257 U. S., 265; W. Va. Laws, 1919, 
Ex. c. 5. Interstate commerce. Justices Holmes, Clarke, Pitney and Brandeis 
dissent. 

FARMERS’ BANK v. MINNESOTA, 232 U. S., 516; Minn. Laws, 1907, c. 328. 
Equal protection of laws. 

FIRST NATIONAL BANK OF SAN JOSE v. CALIFORNIA, dec. June 4, 1923, 
Adv. Op. 691. Conflict of California statute with U. S. Laws governing banking. 

FIRST NATIONAL BANK OF GULFPORT 7 ;. ADAMS, 258 U. S. 362, Law 
Ed. 66, 661. Statute of Texas invalid as against Federal Statute. 

FIRST NATIONAL BANK OF SAN JOSE v. CALIFORNIA, dec. June 4, 1923, 
Adv. Op. 691. Conflict of California statute with U. S. Laws governing banking. 
Unanimous. 

FLEXNER v. FARSON, 248 U. S., 289; Ky. Civ. Code, sec. 51. Due process of 
law. 

FOOTE v. MARYLAND, 232 U. S., 494; Md. Laws, 1910. Interstate commerce. 

FORBES PIONEER BOAT LINE 7 -. COMMRS. OF EVERGLADES DRAIN¬ 
AGE DIST., 258 U. S., 338; Law Ed., 66, 647. Invalidates Florida Statute 
taking private property without compensation. 

GALVESTON, H. & S. RY. CO. v. TEXAS, 210 U. S., 217; Law Ed., 52, 1031 
(1908). Invalidates Texas act taxing part receipts derived from interstate pas¬ 
sengers. Justice Harlan, Chief Justice Fuller, Justices White and McKenna 
dissent. 

GAST REALTY .CO. v. SCHNEIDER GRANITE CO., 240 U. S., 55; Mo. 
municipal ordinance. Due process of law. 

GEORGIA RAILWAY & POWER CO. v. COLLEGE PARK, dec. June 4, 1923; 
Adv. Op. 673. Impairing contract by Georgia Statute. 

GEORGIA RAILWAY & POWER CO. v. DECATUR, dec. June 4, 1923; Adv. 
Op. 669. Impairing contract by statute. 

GLOBE BANK v. MARTIN, 236 U. S., 288; Ky. Bankruptcy. Justices Pitney 
and McRcynolds dissent. 


84 


'S 


GRAHAM v. FOLSOM, 200 U. S., 248; Law Ed., 50, 464 (1906). Invalidates law 
abolishing municipal corporation as affecting obligation of municipal contracts. 

GRAND TRUNK WESTERN RY. v. SOUTH BEND, 227 U. S., 544; Ind. 
Municipal ordinance. Obligation of contract. Justices Hughes and Pitney 
dissent. 

GREAT NORTHERN RY. CO. v. CAHILL, 253 U. S, 71; S. D. R. R. Com. 
order. Due process of law. 

GREAT NORTHERN RY. v. MINNESOTA, 238 U. S., 340; Minn. R. R. Com. 
order. Due process of law. 

GREENE y. LOUIS & INTERURBAN R. R. CO., 244, U. S, 499; Ky. Equal 
protection of laws. Justices Holmes, Brandeis and Clarke dissent. 

GUINN v. UNITED STATES, 238 U. S., 347; Okla. Const. 15th Amendment. 

GULF, COLORADO & S. F. RY. CO. v. ELLIS, 165 U. S., 150; Law Ed., 41, 666 
(1897). Equal protection of the laws by act of Texas denied to railway com¬ 
pany upon which is specially imposed attorney’s fees. Justices Fuller, Gray and 
White dissent. 

GULF, COLORADO & S. F. RY. CO. LEWIS, 158 U. S., 98; Law Ed., 39, 910 
(1895). Invalidates as to interstate commerce Texas act imposing penalty for 
failure to deliver goods on tender of rate named in bill of lading. 

HARMAN ?/. CITY OF CHICAGO, 147 U. S, 396; Law Ed., 37, 216 (1893). 
Holding invalid city ordinance interfering with interstate commerce. 

HARRISON *>. ST. L. & SAN FRAN. R.R., 232 U. S., 318; Okla. Laws, 1908. 
Interstate commerce. 

HAWKE v. SMITH, 253 U. S., 221; 253 U. S., 231; Ohio Const. No referendum 
on U. S. Const. Amendments. 

HERNDON */. CHICAGO, ROCK ISLAND & P. RY. CO., 218 U. S., 135; Law 
Ed., 54, 970 (1910). Declares invalid Missouri law refusing rights to foreign 
company which brings or removes suit in or to a Federal court. Chief Justice 
Fuller concurs in result. 

HEYMAN v. HAYS, 236 U. S., 178: Tenn. County tax. Interstate commerce. 

HOME TEL. CO. y. LOS ANGELES, 227 U. S., 378; Calif. Municipal ordinance. 
Question of jurisdiction. 

HOUSTON & T. R. CO. v. MAYES, 201 U. S., 321; Law Ed., 50, 772 (1906). 
Declares invalid Texas statute penalizing railroad as interference with interstate 
commerce. 

HOUSTON & T. C. CO. v. TEXAS, 170 U. S., 243; Law Ed., 42, 1023 (1898). 
Declares article of Texas Constitution as interpreted by State court affecting 
prior contracts with railroad under which they constructed their line to impair 
obligation of contract and deprive the company of property without due process 
of law. 'MUM 

HOUSTON & T. C. R. v. TEXAS, 177 U. S., 66; Law Ed., 44, 673 (1900). In¬ 
validates Texas statute as affecting obligation of contract. Justice J3rown con¬ 
curs in part separately. 

HOUSTON & TEXAS RY. v. UNITED STATES, 234 U. S., 342; Texas. Inter¬ 
state commerce Justices Lurton and Pitney dissent. 

ILL. CENTRAL R. CO. v. ILLINOIS, 163 U. S., 142; Law Ed., 41, 107 (1896). 
Declares Illinois State statute invalid as interference with interstate commerce. 

ILLINOIS CENTRAL R. R. v. LA. R. R. COMM., 236 U. S., 157; La. R. R. 
Com. order. Interstate commerce. 

INTERNATIONAL HARVESTER CO. v. KENTUCKY, 234 U. S., 216; Ky. 
Const., 198. laws 1906, c. 117, laws 1908, c. 8. Due process of law. Justices 
Pitney and Lurton dissent. 

INTERNATIONAL HARVESTER CO. v. KENTUCKY, 234 U. S., 589; Ky. 
Follows preceding case. 

INTERNATIONAL PAPER CO. v. MASSACHUSETTS, 246 U. S., 135; Mass., 
1914, c. 724. Interstate commerce. 

INTERNATIONAL TEXT BOOK CO. v. PIGG, 217 U. S., 91; Law Ed., 54, 678, 
(1910). Declares invalid Kansas statute touching filing of statement of financial 


85 


condition of foreign corporation. Chief Justice Fuller and Justice McKenna 
dissent. 

JOHNSON z/. MARYLAND, 254 U. S., 51; Md. Laws, 1918, c. 85. Government 
intrumentalities beyond state control. Justices Pitney and McReynolds dissent. 

KANSAS v. BURLESON, 250 U. S., 188; Kan. Federal powers. Justice Brandeis 
dissents. 

KANSAS CITY SO. RY. v. ROAD IMP. DISTRICT NO. 6, 256 U. S., 658; Ark. 
Due process of law. 

KENER v. LAGRANGE MILLS, 231 U. S., 215; Ga. Const. Bankruptcy. 

KENTUCKY FINANCE CORP. z/. PARAMOUNT AUTO EXCHANGE CORP., 
dec. June 11, 1923, Adv. Op., 745. Kentucky Statute denies equal protection of 
laws. Justices Brandeis and Holmes dissent. 

KENNY, ADMINISTRATOR v. SUP. LODGE OF THE WORLD, 252 U. S., 
411; Ill. Statute. Held invalid as violating full faith and credit clause of the 
constitution. 

KIRMEYER v. KANSAS, 236 U. S., 568: Kans. Interstate commerce. 

LAKE SHORE & M. S. RY. CO., z/. SMITH, 173 U. S., 684; Law Ed., 43, 858 
(1899). Invalidates act of Michigan extending time of life of all railway 
tickets. Justices Fuller, Gray and McKenna dissent. 

LEE v. ROBINSON, 196 U. S., 65; Law Ed., 49, 389 (1904). Invalidates South 
Carolina act allowing payment of taxes by tender of bond script. 

LEISY v. HARDIN, 135 U. S., 100; Law Ed., 34, 128 (1890). Declares void 
Iowa statute as interfering with interstate commerce forbidding delivery of 
original packages. Justices Gray, Harlan and Brewer dissent. 

LEMKE, ATTY. GENL. v. FARMERS’ GRAIN CO., 258 U. S., 50; 66 Law Ed., 
458. Llolds unconstitutional Statute of North Dakota as affecting interstate 
commerce. Justice Brandeis, Holmes and Clarke dissent. 

LINCOLN GAS CO. v. LINCOLN, 250 U. S., 256; Nebr. Rate confiscatory. 

LOCHNER v. NEW YORK, 198 U. S., 46; Law Ed., 49, 937 (1905). Invalidates 
New York law controlling hours of bakers. Justices Holmes, Harlan, Day and' 
White dissent. 

LOCOMOTIVE CO. v. MASSACHUSETTS, 246 U. S., 146; W. Va., Interstate 


commerce. 

LOONEY v. CRANE CO., 245 U. S. 178; Texas Laws, 1907. Interstate commerce. 

LOS ANGELES v. LOS ANGELES CITY WATER CO., 177 U. S., 558; Law 
Ed., 44, 886 (1900). Invalidates city ordinance covering water rates impairing 
obligation of contracts. 

LOS ANGELES v. LOS ANGELES GAS CORP., 251 U. S., 32; Cal. Municipal 
ordinance. Due process of law. Justices Pitney and Clarke dissent. 

LOUIS. & NASH. R. R. CO. v. GREENE, 244 U. S., 522; Ky. Due process of 
law. Justices Holmes, Brandeis and Clarke dissent. 

LOUISIANA EX REL v. NEW ORLEANS, 215 U. S., 170; Law Ed., 54, 144 
(1909). Declares invalid Louisiana act depriving receiver of Metropolitan Police 
Board of right of taxation. 

LOUISIANA RY. & NAV. CO. v. NEW ORLEANS, 235 U. S., 164; La. 
municipal ordinance. Obligation of contracts. 

LOUISVILLE & JEFFERSONVILLE F. CO. v. KENTUCKY, 188 U. S., 385; 
Law Ed., 47, 513 (1903). Invalidating tax of Kentucky on franchise granted 
bv another State. Chief Justice Fuller and Justice Shiras dissent. 

LOUISVILLE & NASHVILLE RY. CO. v. CENTRAL STOCK YARDS CO., 
212 U. S., 131; Law Ed., 53, 441 (1909). Declares invalid Kentucky statute 
requiring railway company to deliver its own cars to another railway company 
under provisions named in the statute. Justice McKenna dissents; Justices 
Harlan and Moody concur in the dissent. 

LOUISVILLE & NASHVILLE R. R. v. COOK BREWING CO., 223 U. S„ 70; 
Kv. Stat., 1909, sec. 2569a. Interstate commerce. 

LOUISVILLE & N. R. R. CO. v. EUBANK, 184 U. S., 27; Law Ed., 46, 416 




) 


86 


(1902). Declaring invalid Kentucky statute as interference with interstate com¬ 
merce. Justice Brewer and Gray dissent. 

LUDWIG v. WESTERN UNION TEL. CO., 216 U. S., 146; Law Ed. 54, 423 
(1910). Declares invalid Arkansas law requiring payment by foreign telegraph 
company of a certain amount based on capital stock for filing articles of incor¬ 
poration. Chief Justice Fuller, Justice McKenna and Justice Holmes dissent. 

LYNG v. MICHIGAN, 135 U. S., 161; Law Ed., 36, 150 (1890). Tax on agent of 
importers disposing of original packages held void. Justices Harlan, Gray and 
Id rcwer dissent 

McCABE v. A. T. & S. F. RY. CO., 235 U. S., 151; Okla. Laws, 1907. Equal pro¬ 
tection of law. 

McCALL v. CALIFORNIA, 136 U. S., 104; Law Ed., 34, 391 (1890). Reverses 
State court and declares void as to interstate commerce municipal regulation of 
San Francisco. Chief Justice Fuller and Justices Gray and Brewer dissent. 

McDONALD v. MABEE, 243 U. S. 90; Texas. Due process of law. 

McDermott v. Wisconsin, 228 u. s., 115 ; wis. Laws, 1907 , c. 557 . inter- 

state commerce 

McFarland v. % American sugar co., 241 u. s., 79; La. Laws, 1916 , No. 10 . 

Equal protection of laws. 

McGAHEY 7 ;. VIRGINIA. 135 U. S„ 662; Law Ed., 34, 304 (1890). Invalidates 
act of Virginia, limiting time of proceedings to test genuineness of certain 
coupons, as unreasonable and impairing obligation of contract. 

McGINIS 7-. CALIFORNIA, 247 U. S., 91; 247 U. S., 95; Cal. Laws, 1913, c. 342. 
Interstate commerce. 

MACLEOD v. NEW ENGLAND TEL. CO., 250 U. S., 195; Mass. Federal 
powers. Justice Brandeis dissents. 

MEDLEY, Petitioner, 134 U. S., 160; Law Ed., 33, 835 (1890). Invalidates Colorado 
act under United States Constitution as ex post facto. 

MEYER v. STATE OF NEBRASKA, dec. June 4, 1923. Adv. Op. Oct. Term, 1922, 
p. 698. Nebraska law violates hbertv guaranty of 14th Amendment. 

MINNEAPOLIS v. MINNEAPOLIS ST. RY.'CO., 215 U. S., 415; Law Ed., 54 
259 (1910). Declares invalid as impairing obligation of contract ordinance 
affecting street railway charge. 

MINNESOTA y. BARBER, 136 U. S., 318; Law Ed. 3, 4, 455 (1890). Minnesota 
statute requiring inspection tax on beef imported from another state held void 
as restricting interstate commerce. 

MISSOURI, KANS. & TEX. RY. v. HARRIMAN, 227 U. S., 657; Texas. Inter¬ 
state commerce. Justice Pitney dissents. 

MISSOURI PAC. RY. v. LARABEE, 234 U. S., 459; Kansas. Attorney fees in 
Supreme Court. 

MISSOURI PAC. RY. CO. v. NEBRASKA, 217 U. S., 194; Law Ed., 54, 727 
(1910). Declares invalid Nebraska law touching construction of sidetracks, 
etc., to reach grain elevators. Justices Harlan and McKenna dissent. 

MISSOURI PAC. RY. CO. v. TUCKER, 230 U. S., 340; Kans. Laws, 1905, c. 353. 
Due process of law. 

MISS. R. R. COM. v. MOBILE & OHIO R. R. CO., 244 U. S., 388; Miss. R. R. 
Com. order. Due process of law. 

MOBILE & O. R. CO. ET AL v. TENN., 153 U. S., 486; Law Ed., 38, 793 (1894). 
Declares Tenn. state statute invalid as impairing obligation of contract. Chief 
Justice Fuller, with whom concurred Justices Grav, Brewer and Shiras, dissent. 

MUHLKER v. NEW YORK & H. R. CO., 197 U. S., 544; Law Ed., 49, 872 
(1905). Invalidates New York law providing for elevated structure changing 
street conditions. Justice Brown concurs in result. Justice Holmes dissents; 
Chief Justice Fuller and Justices White and Peckham concur in dissent. 

MYERS v. ANDERSON, 238 U. S., 368; Md. Laws, 1908. c. 525. 15th Amendment. 

MYLES SALT CO. v. IBERIAN DRAINAGE DISTRICT, 239 U. S., 478; 
La. Due process of law. 

NEWTON, ATTY. GENL., v. CONS. GAS. CO., 258 U. S., 165; Law Ed. 66, 


87 


, Oct. term, 1921, Adv. Op., 305, dec. March 6, 1922. Statute fixing gas 
rates in New York held unconstitutional as confiscatory. 

NEWORLEANSft N. E. R. R. CO., v. SCARLET, 249 U. S., 528; Miss, laws, 
1912, c. 215. Conflict of laws. 

N. Y. CENTRAL R. R. v. HUDSON COUNTY, 227 U. S., 248; N. J. county 
ordinance. Interstate commerce. 

NEW YORK CENTRAL R. R. CO. v. WINFIELD, 244 U. S., 147; N. Y. Inter¬ 
state commerce. Justices Brandeis and Clarke dissent. 

NEW YORK L. E. & W. R. R. CO. v. PENNSYLVANIA, 153 U. S., 628; 38 
Law Ed., 846 (1894). Obligation of contracts. 

NEW YORK LIFE INS. CO. v. DODGE, 246 U. S, 357; Mo. Rev. Stat, 1899, 
sec. 7897. Due process of law. Justices Brandeis, Day, Pitney and Clarke 
dissent. 

NORFOLK & WESTERN RY. CO. v. PENNSYLVANIA, 136 U. S., 114; Law 
Ed., 34, 394 (1890). Declares Pennsylvania law invalid imposing license tax 
on agent of foreign railway connecting with Pennsylvania road. Chief Justice 
Fuller and Justices Gray and Brewer dissent. 

NORFOLK & WESTERN RY. CO. v. SIMS, 191 U. S., 441; Law Ed., 48, 25.4 
(1904). Invalidates North Carolina tax on foreign corporation selling machines 
in the state on order. 

NORFOLK & WESTERN RY. CO., v. WEST VIRGINIA, 236 U. S., 605; W. 
Va. laws. 1907, c. 41. Due process of law. Justice Pitney dissents. 

NORTH CAROLINA R. R. CO. v. ZACHARY. 232 U. S., 248; N. C. Conflict 
of laws. 

NORTH DAKOTA EX REL. FLAHERTY v. HANSON, 215 U. S., 515; Law 
Ed., 54, 307 (1910). Declares invalid North Dakota act requiring receipts for 
payment of Federal Internal revenue tax to be published at holder’s expense. 
Chief Justice Fuller, Justices McKenna and Holmes dissent. 

NORTHERN PAC. RY. CO. v. NORTH DAKOTA, 250 U. S, 135; N. D. Con¬ 
flict of laws in interstate commerce. 

NORTHERN PAC. RY. CO. v. NORTH DAKOTA, 236 U. S„ 585; N. Dak. 
laws, 1907, c. 51. Due process of law. Justice Pitney dissents. 

NORTHERN PACIFIC RY. v. WASHINGTON, 222 U. S., 370; Wash, laws, 
1907, c. 20. Conflict of laws in interstate commerce. 

NORWOOD v. BAKER, 172 U. S., 269; Law Ed., 43, 443 (1898). Invalidates 
municipal assessment for special benefits made bv Ohio Municipal corporation. 

OHIO R. R. COM. v. WORTHINGTON, 255 U. S., 101; Ohio R. R. Com. order. 
Interstate commerce. 

OHIO VALLEY CO. v. BEN AVON BOROUGH, 253 U. S., 287; Pa. Due 
process of law. Justices Brandeis, Holmes and Clarke dissent. 

OKLAHOMA v. KANSAS NAT. GAS CO., 221 U. S., 229; Okla. laws, 1907, 
c 67. Interstate commerce. Justices Holmes, Lurton and Hughes dissent. 

OKLAHOMA v. WELLS FARGO CO., 223 U. S., 298; Okla. laws, 1910, c. 44. 

OKLAHOMA GIN CO. v. OKLAHOMA, 252 U. S., 339; Okla. Rev. Laws, 1910, 
sec. 8235. Due process of law and equal protection of laws. 

OKLAHOMA OPERATING CO. v. LOVE, 252 U. S., 331; Okla. Rev. Laws, 
1910, sec. 8235. Due process and equal protection of laws. 

OWENSBORO v. CUMBERLAND TEL. CO., 230 U. S., 58; Ky. municipal ordi¬ 
nance. Property right in certain franchise. Justices Day, McKenna, Hughes 
and Pitney dissent. 

PENNOYER ET AL v. McCONNAUGHY, 140 U. S., 1; Law Ed., 35, 363 (1891). 
Declares Oregon statute invalid as impairing obligation of contract. 

PENNSYLVANIA v. WEST VIRGINIA, dec. June 11, 1923. Adv. Op. 762, 782, 
Oct. Term, 1922, as also OHIO, v. WEST VIRGINIA. Unlawful interference 
of West Virginia Statute with interstate commerce. Justices Holmes, McRey- 
nolds and Brandeis dissent. 

PENN R. R. v. PUB. SERVICE COM., 250 U. S., 560; Pa. Laws, 1911, p. 1053. 
" Admiralty. Justices Brandeis and Clarke dissent. 


/ 



88 


PETERS v. VEASY, 251 U. S., 121; La. Laws, 1914, No. 20. Interstate commerce. 

Tiicfipp i Ipirlcp 

PHIPPS v. CLEVELAND REFINING CO., Oct. term, 1922, Adv. Op., 496, dec. 
April 9, 1923, Sup. Ct. Rep. 418, vol. 43. Ohio Inspection Statute, held uncon¬ 
stitutional as interference with Interstate commerce. 

POSTAL TELEGRAPH-CABLE CO. v. TAYLOR, 192 U. S., Law Ed., 48, 342 
(1904). Invalidates ordinance imposing license fee on poles and wire, as invalid 
exercise of police power. Justices Harlan and Brewer dissent. 

POSTAL TELEGRAPH-CABLE CO. v. WARREN GODWIN CO., 251 U. S., 
27; Miss. Interstate commerce. Justice Pitney dissents. 

POWERS v. DETROIT, G. H. & M. R. CO., 201 U. S., 543, Law. Ed., 50, 860 
(1906). Invalidates section of Michigan law levying additional taxes beyond 
contract amount. Justice White dissents. 

PROVIDENT SAVINGS ASS’N v. KENTUCKY, 239 U. S., 103; Ky. Stat., 
sec. 4226. Due process of law. 

PRYOR v. WILLIAMS, 254 U. S., 43; Mo. Conflict of laws. 

REARICK v. PENNSYLVANIA, 203 U. S., 507; Law Ed., 51, 295 (1906). 
Municipal ordinance exacting license fee declared void as interference with 
interstate commerce. 

RIVERSIDE MILLS v. MENEFEE, 237 U. S., 189; N. C. Due process of law. 

ROANOKE, THE, 189 U. S., 185; Law Ed., 47, 770 (1903). Declares invalid 
Washington Statute creating lien on foreign vessels as interference with inter¬ 
state commerce. Justice Harlan concurs. 

ROGERS v. ARKANSAS, 227 U, S., 40; Ark. Laws, 1909, No. 97. Interstate 
commerce. 

ROSENBERGER v. PACIFIC EXPRESS CO., 241 U. S, 48; Tex. Laws, 1907. 
Interstate commerce. 

ROSSI v. PENNSYLVANIA, 238 U. S., 62; Pa. Laws, 1887, p. 113. Interstate 
commerce. , 

ROWLAND v. St. L. & S. F. R. R. CO., 244 U. S., 106; Ark. Laws, 1907. 

ROYSTER GUANO CO. v. VIRGINIA, 253 U. S., 412; Va. Laws, 1916, c. 472. 
Equal protection of laws. Justices Brandeis and Holmes dissent. 

RUSSELL v. SEBASTIAN, 233 U. S., 195; Cal. Const., Art XL, 19 as amended. 
Impairing obligation of contracts. 

ST. CLAIR COUNTY 7 ;. INTERSTATE S. & C. T. CO., 192, U. S., 454; Law 
Ed., 48, 518 (1904). Invalidates Illinois law imposing license tax on ferry across 
the Mississippi. 

ST. LOUIS COTTON COMPRESS CO. v. ARKANSAS, Adv. Op. Sup. Ct. Rep., 
1922, Oct. term, p. 125, dec. Dec. 4. Holds Arkansas Statute invalid under 
Fourteenth Amendment under certain circumstances. 

ST. LOUIS COTTON COMPRESS CO. v. ARKANSAS, 61 U. S., 346, Oct. 
term, 1922, dec. Dec. 4, 1922. Tax imposed by State invalid under Fourteenth 
Amendment. • 

ST. LOUIS, I. M. & S. RY. v. WYNNE, 224 U. S., 354; Ark. laws, 1907, c. 61. 
Due process of law. 

ST. LOUIS, I. M. & S. RY. v. EDWARDS, 227 U. S., 265; Ark. laws, 1907, 
No. 193. Interstate commerce. 

ST. LOUIS, I. M. & S. RY. v. HESTERLY, 228 U. S„ 702; Ark. Interstate 
commerce. 

ST. LOUIS & SAN FRAN. RY. CO. v. PUB. SERVICE COM. OF MISSOURI, 
254 U. S., 535; Law Ed., 65, 389. Held act of Commission interference with 
Interstate commerce. Justices Pitney and Clarke dissent. 

ST. LOUIS, SAN FRAN. RY. CO. v. PUBLIC SERV. COM. OF MISSOURI, 
Oct. term, 1922, Adv. Op., p. 425, Mar. 19, 1923, Sup. Ct. Rep., vol. 43, p. 380. 
Order of Commission as to trains held interference with Interstate commerce. 

ST. LOUIS, SAN FRAN. RY. v. SEALE, 229 U. S., 156; Texas. Interstate com¬ 
merce. Justice Lamar dissents. 

ST. LOUIS & S. W. R. CO. v. ARKANSAS, 217 U. S. 136; Law Ed., 54, 698 


89 


(1910). Declares invalid Arkansas Statute touching supply of cars. Chief 
Justice Fuller dissents. 

ST.PAULRY ; .LATTA, 226 U. S., 519; Nebr. Const. Interstate commerce. 

SAULT STE. MARIE v. INl’L TRANSIT CO., 234 U. S., 333; Mich, municipal 
ordinance. Interstate commerce. 

SAUNDERS v. SHAW, 244 U. S., 317; La. This declared a judicial ruling in 
enforcement of a tax law unconstitutional. Due process of law. 

SAVINGS BANK v. DES MOINES, 205 U. S, 303; Law Ed. 51, 901 (1907). 
Iowa state law which in effect requires taxing of national securities declared 
invalid. 


SCHOLLENBERGER v. PENNSYLVANIA, 171 U. S., 1; Law. Ed., 43, 49 
(1898). Declares invalid Pa. state statute as interfering with interstate com¬ 
merce. Justice Gray, with whom concurs Justice Harlan, dissent. 

SCOTT v. DONALD, 165 U. S., 58; Law Ed., 41, 632 (1897). Declares act of 
South Carolina affecting importation of liquor as unequal and unconstitutional 
and void as hindrance to interstate commerce. Justice Brown dissents. 

SEABOARD AIR LINE RY. v. BLACKWELL, 244 U. S., 310; Ga. Civ. Code 
36060—23591. Interstate commerce. Justices White, Pitney and Brandies dissent. 

SEABOARD AIR LINE v. HORTON, 233 U. S., 492; N. C. Rev. 1905, 2646. 
Interstate commerce. 


SHAPLEIGH v. SAN ANGELO, 167 U. S., 646; Law. Ed., 42, 311 (1897). De¬ 
clares unconstitutional act of Texas as interpreted by its Supreme Court 

requiring new vote for assumption of old debt by recreated municipality. 

SIOUX REMEDY CO. v. COPE, 235 U. S., 197; S. D. Rev. Code, 1903, 883-885. 

Interstate commerce. 

SIMON v. SOUTHERN RY., 236 U. S., 115; Louisiana. Due process of law. 
SMITH v. TEXAS, 233 U. S., 630; Texas Laws, 1909. Due process of law. 

I H nlmPQ niQQPtifQ 

SMYTH v. AMES, 169 U. S., 466; 42 Law Ed., 819 (1898). Declares Nebraska 
state statute fixing rates unconstitutional as taking property without just com¬ 
pensation. 

SONNEBORN BROS. v. KEETING, ATTORNEY GENERAL, dec. June 11, 
1923, Adv. Op. 749. Interference Interstate commerce. 

SOUTH COVINGTON RY. v. COVINGTON, 235 U. S, 537; Ky. Muncipal 
ordinance. Interstate commerce. 

SOUTHERN IOWA ELEC. CO. v. CHARITON, 255 U. S., 539, Law Ed, 65, 765. 

Rates fixed by Ordinance held confiscatory and void. 

SOUTHERN PACIFIC CO. v. JENSEN, 244 U. S^205; New York. Admiralty. 

Justices Holmes, Pitney, Brandeis and Clarke dissent. 

SOUTHERN RY. CO. v. BURLINGTON LUMBER CO, 225 U. S, 99; N. C. 

Rev. 1905, sec. 2131. Interstate commerce. 

SOUTHERN R. R. CO. v. GREENE, 216 U. S, 400; Law Ed, 54, 536 (1901). 
Alabama law imposing additional franchise tax on foreign corporation declared 
invalid as denying equal protection of laws. Chief Justice and Justices McKenna 
and Holmes dissent. 

SOUTHERN RY. v. R. R. COM. IND, 236 U. S, 439; Ind. Interstate commerce. 
SOUTHERN RY. CO. v. REID, 222 U. S„ 424 and 444; N. C. Rev. 1905, sec. 


2131. Interstate commerce. 

SOUTHERN TEL. CO. v. DANAHER, 238 U. S, 482; Ark. Kirby’s Dig, sec. 
7948. Due process of law. 

STEARNS v. MINNESOTA, 179 U. S, 223; Law Ed, 162 (1900). Invalidates 
state legislation impairing obligation of contract by taxation. Justice Brown 
concurs separatelv as do, separately, Justices White, Harlan, Gray and McKenna. 

STEWART v. MICHIGAN, 232 U. S, 665; Michigan. Interstate commerce. 

STOCKARD v. MORGAN, 185 U. S, 27; Law Ed, 46, 785 (1902). Declares 
invalid Tennessee statute imposing a tax as interference with interstate com- 


1 X 1V X v/ Vw. • . 

TAYLOR v. TAYLOR, 232 U. S„ 363; New York. Interstate commerce. 


% 


V 


90 

f 

* f 

THOMPSON v. UTAH, 170 U. S., 343; Law Ed., 42, 1061 (1898). Declares un¬ 
constitutional so much of statute of Utah as takes away common law jury right 
for offenses when a territory. 

TOLEDO R. R. CO. v. SLA YIN, 236 U. S., 454; Ohio Code, 9017-9018. Interstate 
commerce. 

TRAVIS v. YALE & TOWNE MFG. CO, 252 U. S, 60; New York. Due prdcess 
of law. 

TRUAX v. CORRIGAN, 267 U. S, 312; Law Ed, 66, 254. Arizona Statute against 
interference by injunction in certain cases held to deny equal protection of laws. 
Justices Brandeis, Holmes, Pitney and Clarke dissent. 

TRUAX v. RAICH, 239 U. S„ 33; Ariz. Laws, 1915, p. 12. Equal protection of 
laws. Justice McReynolds dissents. 

TURNER v. WADE, 254 U. S, 64; Ga. Laws, 1913, p. 123. Due process of law. 

UNION PAC. R. R. CO. v. PUBLIC SERV. COM, 248 U. S„ 67; Mo. Inter¬ 
state commerce. 

UNION REFRIGERATOR TRANSIT CO. v. KENTUCKY, 199 U. S, 195; Law 
Ed, 50, 151 (1905). Invalidates Kentucky statute including for taxation tangible 
personal property permanently located in other states. Justice White concurs 
in result; Justice Holmes and Chief Justice Fuller dissent in part. 

UNION TANK LINE v. WRIGHT, 249 U. S„ 275; Ga. Civ. Code, sec. 989, 
990, 1031. Interstate commerce. Justices Pitney, Brandeis and Clarke dissent. 

UNITED FUEL GAS CO. v. HALLANAN, 257 U. S, 277; W. Va„ Laws, 1919, 
Ex. c. 5. Interstate commerce. Justices Brandeis and Clarke dissent. 

UNITED STATES v. REYNOLDS, 235 U. S„ 133; Ala. Code, 1907, 6846, 7632. 

UNITED STATES EXPRESS CO. v. NEW YORK, 232 U. S, 35, N. Y. 
Municipal ordinance. Interstate commerce. 

VANDALIA R. R. CO. v. SCHNULL, 255 U. S, 109. Ind. R. R. Com. order. 
Due process of law. Justices Day, Pitney, Brandeis and Clarke dissent. 

VICKSBURG v. VICKSBURG W. W. CO, 202 U. S, 452; Law Ed, 50, 1102 
(1906). Denies right of municipality by ordinance to erect water works after 
having given an exclusive right to private individual. Justice Harlan dissents. 

VOIGHT ET AL WRIGHT, 141, U. S, 67 ; Law Ed, 35, 638 (1891). In¬ 
validates statute of Virginia covering inspection of flour imported from other 
states 

WALLA WALLA CITY 7 ;. WALLA WALLA WATER CO, 172 U. S, 1; 
Law Ed, 43, 341 (1898). Declares invalid city ordinance as impairing obliga¬ 
tion of contract. 

WALLACE v. HINES, 253 U. S, 66; N. D. Laws, 1919, c. 222. Due process of law. 

WARD v. LOVE COUNTY, 253 U. S, 17; Oklahoma Indian Tribes. 

WESTERN OIL REFINING CO. 7 /. LIPSCOMB, 244 U. S, 346, Tenn. Laws, 
1909, c. 479. Interstate commerce. Chief Justice White dissents. 

WESTERN UNION TEL. CO. v. ALABAMA, 132 U. S„ 472; Law Ed, 33, 409 
(1889). Declares invalid Alabama law taxing telegraph company receipts on 
messages from or to other states. 

WESTERN UNION TEL. CO. v. BOEGLI, 251 U. S, 315; Indiana. Interstate 
commerce. 

WESTERN UNION TEL. CO. v. BROWN, 234 U. S, 542, S. C. Civ. Code, 1902. 
Interstate commerce 

WESTERN UNION TEL. CO. 7 ;. KANSAS, 216 U. S, 1; Law Ed, 54, 355 (1910). 
Declares invalid charge against foreign telegraph company of percentage of its 
authorized capital stock for use of school funds. Justice White concurs 
separately and Justice Holmes, Chief Justice Fuller and Justice McKenna dissent. 

WILLCOX v. CONSOLIDATED GAS CO, 212 U. S, 19; Law Ed, 53, 382 
(1909). Declares invalid provisions of New York law fixing gas rates in New 
York City covering gas pressure in mains, etc. 

WILLIAMS v. CITY OF TALLADEGA, 226 U. S, 404; Alabama municipal 
ordinance. Interstate commerce. * 


91 


WISCONSIN v. PHILADELPHIA & READING COAL CO., 241 U. S., 329; 
Wis. Laws, 1905. Court procedure. 

WRIGH1 v. CENTRAL OF GA. RY., 236 U. S., - 674, Georgia. Obligation of 
contracts. Justices Hughes, Pitney and McReynolds dissent. 

WRIGHT v. LOUIS & NASH. R. R., 236 U. S., 687, Georgia. Obligation of con¬ 
tracts. Justices Hughes, Pitney and McReynolds dissent. 

YOUNG, EX PARTE, 209 U. S., 123; Law Ed., 52, 715 (1908). Declares statute 
of Minnesota unconstitutional because exacting excessive penalties for resorting 
to court test its validity. Justice Harlan dissents. 


APPENDIX B. 

STATE LAWS HELD UNCONSTITUTIONAL BY STATE COURTS, 1658 TO 1916 

The following is presented as an enumeration derived from the digests down to 
the year 1916 of cases in the courts of the several states in which acts of the legis¬ 
latures have been declared unconstitutional. This table can not be accepted as abso¬ 
lutely correct, but as presenting a very close approximation to the real situation. 
To attain perfection would require uninterrupted labor of many months and might 
not then be achieved. The difference in the ultimate result from that afforded by 
the present table, itself the product of many days’ work, would not be of sufficient 
importance to justify the effort. 

Alabama, 104; Arizona, 6; Arkansas, 78; California, 165; Colorado, 65; Connec¬ 
ticut, 48; Delaware, 18; District of Columbia, 13; Florida, 30; Georgia, 53; Idaho, 
30; Illinois, 196; Indiana, 136; Iowa, 77; Kansas, 68; Kentucky, 149; Louisiana, 98; 
Maine, 38; Maryland, 97; Massachusetts, 82; Michigan, 126; Minnesota, 80; Mis¬ 
sissippi, 69; Missouri, 169; Montana, 21; Nebraska, 67; Nevada, 15; New Hamp¬ 
shire, 51; New Jersey, 102; New Mexico, 3; New York, 384; North Carolina, 81; 
North Dakota, 30; Ohio, 132; Oregon, 37; Pennsylvania, 177; Rhode Island, 22; 
South Carolina, 65; South Dakota, 27; Tennessee, 123; Texas, 134; Utah, 22; Ver¬ 
mont, 55; Virginia, 50; Washington, 50; West Virginia, 32; Wisconsin, 105; 
Wyoming, 9. Total, 3,789. 





V 



92 


APPENDIX C. 


Summary of 


Laws Held Void by State and Federal Courts According to the 
List Prepared by the New York Library, 1903-1908 



1903. 

1904. 

1905. 

1906. 

1907. 

1908. 

Total 

Lack of clear title. 

10 

8 

7 

13 

7 

10 

55 

Denial of equal protection of laws. 

9 

4 

1 

6 

10 

6 

36 

Class and special legislation. 

4 

7 

8 

19 

7 

8 

53 

Lack of power and refusal to follow Con- 








stitution. 

5 

5 

8 

18 

11 

1 

48 

Deprival of property without due process 








of law. 

5 

15 

4 

9 

11 

5 

49 

Interference with judicial powers. 

4 

2 

8 

5 

12 

1 

32 

Lack of uniformity in taxation. 


5 

2 

7 

7 

2 

23 

Impairing obligation of contract. 

2 

1 

2 

5 

8 

3 

21 

Interference with interstate commerce.... 

1 

5 

3 

2 

5 

3 

19 

Not valid exercise of police power. 

1 


2 

7 

2 

1 

13 

Relating to elections. 




2 

5 

2 

9 

Denial of freedom of contract. 

3 

2 

3 




8 

Attempt to confer legislative powers. 


1 

3 

2 


2 

8 

Taking property for private purposes .... 



2 

1 

4 

1 

8 

Exemption from taxation. 

2 

1 



1 

1 

5 

Taxation for private purposes. 

1 



1 

2 


4 

Interference with federal power. 

1 



1 

2 


4 

Interference with personal liberty. 

2 





1 

3 

Ex post facto laws.. 

1 

1 





2* 









Total. 

51 

57 

53 

98 

94 

47 

400 

























































INDEX. 


Resolutions directing this Report... 1 

Opinions of Recent Writers as to Present Exercise of Judicial Powers... 1 

Early History of Judicial Control of Legislation...... 5 

American Constitutional Cases Prior to the Formation of the Constitution. 6 

The Federal Constitutional Convention.... 10 


Constitutional Provisions Bearing Upon Judicial Power and Action Thereunder of 
First Congress.-..... 


The Course of the Federal Supreme Court and Early United States Circuit Courts 

in Declaring Acts of Congress Unconstitutional....... 13 

Theory of Public Agency....... 18 

Decisions Following Marbury vs. Madison.. 20 

Political Nature of Judicial Control Over Legislative Acts.-. 22 

Other Supreme Court Decisions of Constitutional Interest. 29 

Summary as to Supreme Court Cases Declaring Acts of Congress Unconstitutional 36 

Control by the Supreme Court Over State Legislation._. 40 

State Courts Declaring Legislative Acts Unconstitutional Under Federal and State 

Constitutions After the Establishment of the Federal Judicial System... 49 

Practice of Foreign Countries as to Review of Legislative Acts. 60 

Manner in Which Constitutional Questions May Arise. .. 64 

Limiting Exercise of Judicial Power to Unanimity or to a Large Percentage of 


Judges...._.....-__:... 64 


The Argument in Favor of Maintaining the Judicial Power as now Exercised. 66 

Remedies Heretofore Proposed....... 68 

The Recall of Judges..... 69 

Election of Judges. 69 

Recall of Decisions.. 69 

Stare Decisis. ..— 70 

Propositions in Congress...-.-.-. 70- 

(a) Proposition introduced some years ago. 70 

(b) Mr. McSwain’s Bill. 71 

(c) Senator Borah’s Bill. 71 

(d) Mr. Frear’s Bill..... 72 

Suggested Remedies.-._.-.-.-.-.—.—72 

Appendix A.—Acts of Congress and State Legislation Declared Unconstitutional 
by the United States Supreme Court Up to and Including October 

Term, 1922....-----. 77 

Acts of Congress.-.-.-.77-79 

Acts of State Legislature and Authorities.79-91 

Appendix B.—State Laws Held Unconstitutional by State Courts, 1658 to 1916.’. 91 


Appendix C.—Summary of Laws Held Void by State and Federal Courts According 
to the List Prepared by the New York Library, 1903-1908. 


92 







































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Y OF CONGR 


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0 021 866 782 A 












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